Blacklist does not infringe on fundamental rights

Article by Caio Borges published on Jota

On Tuesday, March 7, the president of the Superior Labor Court, Ives Gandra Filho, suspended the publication of the slave labor blacklist. The decision is regrettable in that it endorses a distorted vision according to which the list itself is a rights violation instead of an essential tool to protect these same rights. It also disregards all the international recognition enjoyed by the document since it was created 13 years ago.

This type of legal challenge is nothing new, particularly when mounted by business groups from sectors where the occurrence of contemporary forms of slavery is most widespread, namely agribusiness and civil construction. These legal cases typically argue that the blacklist infringes on basic rights such as due legal process, the presumption of innocence, the right to a full defense and the principal of “reserva da lei”, or regulation by primary legislation.

All these contentions are unfounded. Looking at the current procedure for the inclusion of companies on the list, we can see that several opportunities are presented for an adversarial process and a full defense. When making his decision on the risk that the blacklist supposedly poses to the democratic rule of law, the president of the court demonstrated just how little he knows about the very nature of the mechanism and the scope of the consequences. In any event, according to the court ruling, the blacklist will be suspended for the duration of the 120-day time frame requested by the government for a working group to “reformulate and refine” the regulations.

Any human undertaking can be improved, but given the wavering commitment of the current government to fundamental rights and its proximity to the more problematic economic sectors in terms of working conditions, there are serious concerns that the process will lead to a weakening of the blacklist, not the announced improvement.

It is strange to think that the blacklist needs reformulating to be compatible with the democratic rule of law when in fact the list was revised less than a year ago, when several of the demands of the business groups were incorporated into the regulation of the tool.

The improvement in the process for including companies on the list, in order to make it compatible with fundamental rights and guarantees, was so apparent that the president of the Supreme Court, Cármen Lúcia, rightly acknowledged this in a case addressing the constitutionality of the tool (a rather heterodox acknowledgement from a legal standpoint, it must be said, considering that it was suspended without judgment of merit). Justice Lúcia stated that “the points challenged in the case have been resolved in the subsequent decree”.

This subsequent decree she was referring to is 04/2016, which was issued in the dying days of the administration of Dilma Rousseff. The former president altered the workings of the blacklist in at least two key ways. First, the new decree established the requirement that inclusion on the blacklist be contingent on the receipt of a notice of infraction specifically for slave labor conditions.

Until then, companies could be included on the list after being issued notices of infraction for the offenses itemized in article 149 of the Criminal Code (forced labor, debt bondage, degrading work conditions and arduous working hours). This alteration was an explicit concession to the business sector, which had claimed that the previous regulation created legal uncertainty.

The second change introduced by decree 04/2016 was the possibility for the employer to sign a “Conduct Adjustment Agreement” or a legal settlement with the federal government. This provides the opportunity for anyone found using slave labor to be placed in a type of “quarantine” for a year, during which time they must make a commitment to improve their business practices and contribute to policies to combat slave labor. If these requirements are met, the business owner can ask to be taken off the list. Only in cases of non-compliance with the terms of these agreements can the company’s name be put on the primary list.

Note that this process observes all the other rules governing administrative proceedings in Brazil, so it cannot be claimed that it represents a state of exception. It is worth remembering that the blacklist is nothing more than a public record of companies found using contemporary forms of slavery during standard inspections of working conditions by the authorities. Before being included on the list, the employer has the right to appeal to all the competent bodies, up to the highest administrative level. And, as we have seen, since last year the possibility exists for companies to sign a voluntary agreement to improve labor practices before they are finally placed on the list.

Brazil took a major step in the past to become the first country to recognize that the scourge of slave labor is still a reality. Any setback in the struggle against this odious form of exploitation of human beings is unacceptable. Brazilian society has a shared duty to embrace the blacklist and the right to know what it really is: a tool to protect fundamental rights, not to violate them.

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