Article 149
Article 149, included in our Penal Code by the decree of Law 2848/40, deals especially with the prohibition of ...
What is decent work?
After all, what does decent work mean? Decent work is “properly paid work, carried out under conditions of freedom, equity and security, capable of guaranteeing a dignified life”, according to the main organization that works on the theme in the world, the International Labor Organization (ILO).
The central element of the concept of decent work, conceived by the ILO in 1999, is equal opportunities and treatment between men and women and the fight against all forms of discrimination. The concept summarizes the organization's mission of promoting opportunities for men and women to have productive and quality work, under conditions of freedom, equity, security and human dignity.
Decent work is considered a fundamental condition for overcoming poverty, reducing social inequalities, guaranteeing democratic governance and sustainable development. It is fundamental for reaching the Sustainable Development Goals (SDGs) defined by the United Nations. In particular, SDG 8, which seeks to “promote sustained, inclusive and sustainable economic growth, full and productive employment and decent work for all women and men”. The main aspects of decent work have also been largely included in the goals of many other SDGs in the 2030 Sustainable Development Agenda.
Source: ILO
Decent Work vs. Slave Labor
Among the priorities for promoting decent work in the world is facing and fighting slave labor. The goals related to slave labor in the SDGs speak of the worldwide commitment to “Take immediate and effective measures to eradicate forced labor, end modern slavery and human trafficking and ensure the prohibition and elimination of the worst forms of child labor, including recruitment and the use of child soldiers, and by 2025 end child labor in all its forms. ”
The SDGs also address the need for effective measures to eradicate forced labor, human trafficking and modern slavery, serious violations of human rights. Goal 8.8 is clear in this regard: "Protect labor rights and promote safe and protected work environments for all workers, including migrant workers, in particular migrant women, and people in precarious employment".
The ILO Declaration on Fundamental Rights and Principles in Labor also has among its strategic objectives the importance of combating slave labor and establishes as priorities: (ii) elimination of all forms of forced labor; (iii) the effective abolition of child labor; (iv) elimination of all forms of discrimination in terms of employment and occupation; the promotion of productive and quality employment, the extension of social protection and the strengthening of social dialogue.
To learn about the International Labor Organization (ILO) Conventions, ratified by Brazil, access the link: Conventions ratified by Brazil, International Standards on Slave Labor.
Dices
To illustrate the size of the challenge, ILO monitoring and research shows that 40,3 million people were subjected to modern slavery in 2016, according to Walk Free's Global Slavery Index 2018 report. Of this world number, 71% are women and 29% are men.
- 24,9 million people in forced labor
- 14,9 million people in forced marriage
In Brazil, the organization estimates that:
- 370 thousand people are in working conditions analogous to slavery
- More than 53 thousand people have been rescued from slave labor in Brazil since
1995
- More than 90% of workers rescued from slavery come from municipalities
with low development rates
Source: Labor Inspection (Ministry of Economy) and Digital Slave Labor Observatory
Timeline
Legislation and acts
Article 149, included in our Penal Code by the decree of Law 2848/40, deals especially with the prohibition of labor analogous to slavery. With this insertion, reducing someone to a condition analogous to slavery became a criminal act, subject to penalties and sanctions provided for by law. For the full text, click here.
Ordinance N.4 of 11/05/2016 provides for rules regarding the Employer Register, which now publicly registers companies that have subjected workers to conditions similar to slavery. It was also established that the Employers' Register must be disclosed on the official website of the Ministry of Labor, containing the list of individuals or legal entities assessed in a tax action. Another way of naming the Employer Register is "Dirty List". Click in this link and find more information.
Ordinance N. 1429, dated 16/12/2016, instituted a Working Group to discuss new rules on the Register of Employers responsible for work analogous to slavery. The group has organs from the Ministry of Labor, the Civil House, the Attorney General's Office, among other federal bodies, in addition to the Public Ministry of Labor, employers and union representatives. Here there is full information for you to consult.
Bill 432/13 provides for the expropriation of rural and urban properties where the exploitation of slave labor is located. Among other measures, it determines that any and all goods of economic value - seized as a result of illicit traffic in narcotics and related drugs or the exploitation of slave labor - be confiscated. Then, the amounts will be reverted to the Special Fund for the Prevention and Combat of Slave Labor and the Illicit Traffic in Narcotic Drugs and Related Drugs (FUNPRESTIE). To know the other proposals of this project, please click here.
Ordinance no. 289/2018 establishes, within the scope of the Ministry of Human Rights, the Business and Human Rights Committee - ECHR, with specific and essential purposes for the implementation of the guiding principles of the United Nations (UN) regarding companies and legal businesses; seeking to propose common parameters applicable to the performance of private companies, mixed-capital companies or state-owned companies, regarding respect for human rights; in addition to motivating, engaging and monitoring the performance of Brazilian companies.
Requires annual public statement describing: the entity's structure, operations and supply chains, potential risks of modern slavery in operations and supply chains, actions to assess and mitigate risks, including due diligence and correction processes, and how the entity evaluates the effectiveness of these actions. Participating companies operating in Australia with annual revenues exceeding US $ 100 million. Other companies may report voluntarily. Read more about this here.
It requires a “surveillance plan” to avoid violations of human rights and environmental impacts throughout its production chain. France-based companies that employ 5.000 employees in the country or at least 10.000 employees worldwide (including through direct and indirect subsidiaries) undergo this process; or foreign companies based outside France, with French subsidiaries, if they employ at least 5.000 employees in France.
It requires companies of a certain size to disclose the measures adopted each year to ensure that there is no modern slavery in their businesses or supply chains. British and foreign companies that do business with the UK have a global annual turnover of more than $ 52 million, according to the law. The declaration is required at the end of each financial year. See more.
It requires companies subject to the law to disclose information about their efforts to eradicate human trafficking and slavery in their supply chains on their website or in writing. Retailers or retailers, who do business in the state of California, must do this with gross annual receipts worldwide (not just in California) in excess of $ 100 million. FIND OUT MORE.
National
Ordinance No. 4 of 11/05/2016
Ordinance N.4 of 11/05/2016 provides for rules regarding the Employer Register, which now registers ...
Ordinance No. 1429
Ordinance N. 1429, of 16/12/2016, instituted a Working Group to discuss new rules on the Employer Register ...
432 / 13 Bill
Bill 432/13 provides for the expropriation of rural and urban properties where the exploitation of ...
Ordinance no. 289/2018
Ordinance no. 289/2018 establishes, within the scope of the Ministry of Human Rights, the Business and Human Rights Committee -...
International
Australian Modern Slavery Act 2018
Requires an annual public statement describing: the entity's structure, operations and supply chains, potential ...
French Corporate Law Duty of Vigilance
Requires a “surveillance plan” to prevent human rights violations and environmental impacts throughout its ...
UK Modern Slavery Act 2015
It requires companies of a certain size to disclose the measures adopted each year to ensure that there is no slavery ...
The California Transparency in Supply Chains Act
Requires companies subject to the law to disclose information about their efforts to eradicate human trafficking and the ...
Understanding the list of employers, known as the “Dirty List”
The Employer Register, which subjected workers to conditions analogous to slavery, is also known as the “Dirty List”. It is a public transparency mechanism of the Brazilian State, created in 2003, which discloses the names of individuals or legal entities that were caught with the use of slave labor.
Currently, the rules that govern the composition of the “Dirty List” are described in Ordinance No. 4 of 11/05/2016 (signed jointly by two ministries), and their list is published by the Labor Inspection Secretariat, linked to the Ministry of Economy .
According to Article 149 of the Brazilian Penal Code, there are four elements that configure the exploitation of slave labor: - Forced labor - the worker is subjected to working conditions without the possibility of leaving the place, due to debts, geographical isolation , physical and / or psychological threats and violence; - Degrading conditions - the person is exposed to a set of irregularities that make work precarious, putting their health and life at risk, and which threaten their dignity; - Exhaustive day - the worker is subjected to physical efforts or work overloads and that put their physical integrity at risk; - Debt bondage - the person is forced to illegally contract a debt that forces them to work to pay it and which are charged in an abusive way.
The Dirty List is the result of the effectiveness of the state labor inspection action. Auditors are trained to carry out these missions and follow a comprehensive document of national and international legislation, internal regulations on the roles, competences and responsibilities of tax auditors, as well as instructions from other administrative documents that support the work of the inspection and its various dimensions, one of them being the inspection against slave labor. see more here. From the denunciation, a group formed by the Public Prosecutor's Office, tax auditors, federal police or federal highway police (or any available police) goes to the location to verify the conditions denounced. Once the situation is proven, the employer is assessed and will be subject to: - Administrative proceeding, which, if final, with unappealable final decision, a fine may be applied to the employer. And, if you do not enter into or fail to comply with a judicial agreement or Conduct Adjustment Term, pursuant to Ordinance MTb / SDH-MJC no. 4 of 11/05/2016, the employer will have his name listed in the “Dirty List”, provided that, at the time of inspection, the infraction notice provided for in article 444 of the CLT was drawn up due to the finding of work analogous to that of a slave; - Public civil action by the Public Ministry of Labor, which may seek, mainly, a moral reparation for the practice committed; - Criminal proceedings based on article 149 of the Penal Code, which if the evidence is confirmed, the employer could face 2 to 8 years in prison. The penalty is aggravated if aspects of discrimination by race, ethnicity, age, gender, etc. were identified.
Before the publication of Ordinance N.4, of 11/05/2016, the employer remained on the list for two years and during this period he should make all necessary corrections to avoid recurrence, in addition to settling all pending matters with the government. From this ordinance, if the employer signs a Conduct Adjustment Term or judicial agreement with the federal government, it goes to an “observation area” of the register that is also disclosed, but indicates that the company is providing corrections. If you meet all the requirements, the employer can ask you to be removed from the list after one year. But if you do not comply with them, the employer is removed from the “observation area” and returned to the main list.
The denunciation can be made to a nearest Labor Office, or to the Police Station (Civil, Military or Federal), Public Prosecutor's Office, Prosecutor's Office, Public Defender's Office.
Art. 149. Reducing someone to a condition similar to that of a slave, either by subjecting him to forced labor or exhausting work hours, or by subjecting him to degrading working conditions, or by restricting, by any means, his locomotion due to debt contracted with the employer or agent: Penalty - imprisonment, from two to eight years, fine, in addition to the penalty corresponding to violence. 1º The same penalties apply to those who: I - restrict the use of any means of transport by the worker, in order to retain him in the workplace; II - maintains overt vigilance in the workplace or takes possession of documents or personal objects of the worker, in order to retain him in the workplace. 2nd The penalty is increased by half, if the crime is committed: I - against a child or adolescent; II - due to prejudice of race, color, ethnicity, religion or origin .. Definition of institutional racism: CEERT - FES Primer. : Art. 206. Recruit workers, through fraud, in order to take them to foreign territory: Penalty - detention, from 1 (one) to 3 (three) years and a fine. Art. 207. To entice workers, in order to take them from one to another location in the national territory: Penalty - imprisonment from one to three years, and fine. 1º The same penalty applies to those who recruit workers outside the locality where the work is carried out, within the national territory, through fraud or collection of any amount from the worker, or even failing to ensure conditions of their return to the place of origin. 2nd The penalty is increased from one sixth to one third if the victim is under eighteen years old, elderly, pregnant woman, indigenous or physically or mentally disabled.