By LAWRENCE ESTIVALET DE MELLO & RENATA QUEIROZ DUTRA*
The Ministry of Labor decided to grant union registration to Proifes. However, union registration is not the same as union representation
The Ministry of Labor and Employment, through the Department of Labor Relations, decided to grant union registration to Proifes/Federation this Monday (10/06/2024), with national coverage, for the representation of the “Coordination of entities to it [Proifes] affiliates”. The governmental act caused perplexity and indignation among the teaching category nationally, given that the Federal Court of Sergipe had annulled, in an emergency measure, the agreement signed between the federal government and Proifes for the Andes-SN base, in the same sense as the Court's decision. Federal District of Brasília, which had already decided, permanently, that Proifes cannot sign agreements on behalf of the teaching category represented by Sinasefe.
With union registration, has anything changed in these legal processes? Have the decisions lost their legal effectiveness? Can Proifes/Federation now sign for the teaching category with the federal government?
The answer is no.
Union registration is not the same as union representation
Proifes remains without legal and political legitimacy to sign agreements with the federal government on behalf of the teaching category. Proifes' union registration request measures the size of its representative base: in its last petition in the registration process with the Ministry of Labor and Employment, Proifes claims to have only the following registered entities affiliated: ADURN, ADUFRGS, ADUFG, Sindiedutec and Sind-Proifes-Pa.
A federation, as we discussed in another text,[1] is a set of unions that represent the absolute majority of a group or profession. It is formed from at least five unions, “as long as they represent the absolute majority of a group of identical, similar or related activities or professions” (CLT, art. 534).
Two irregularities are expressed in the inadequacy between the situation of Proifes and the granting of its union registration.
The first is that Proifes did not have in its request the minimum of five unions representing the teaching category at its universities. Sind-Proifes-Pará positions itself as a representative of professors at the Federal University of Pará. As demonstrated by Saldanha (2024), this alleged representation is, at the very least, questionable, since professors at UFPA are represented by Adufpa, the union section of the Andes-SN with more than 40 years of existence and 1162 members; Sind-Proifes-PA, in turn, had only 51 members in 2017. The entity had its union registration granted during the Bolsonaro government, based on anti-union measures adopted by that government.[2]
The second is that the entities affiliated to Proifes in their request for union registration do not represent the absolute majority of the teaching category. Among the 69 public universities in Brazil, only three of them (4,34%) were listed in the union registration request as teaching staff represented by a union affiliated with Proifes, namely, UFRGS, UFRN and UFG. Among the 38 Federal Institutes in Brazil, only one (2,63%) had its teaching staff represented by a union affiliated with Proifes, the IF-PR.
Even with the flagrant illegalities in the evaluation of the granting of union registration, it was granted, in the following terms: “Coordination of the entities [Proifes] affiliated to it that have representation of the category that brings together the Unions of Teachers and Teachers of Federal Public Higher Education and Federal Public Basic, Technical and Technological Education”.
The governmental act has a declaratory legal nature and, therefore, only recognizes an existing factual situation. The approved union registration did not attribute majority legal representation to an entity that presents, in its registration application, representation of 4,34% of university professors and 2,63% of FI professors, but rather, and only, recognized the legitimacy of this entity for the “coordination of the entities [Proifes] affiliated to it”.
Union registration is not to be confused with union representation, nor does it precede or create it. Category representation is not an act decided by the government, but an activity of the workers themselves, in their exercise of self-organization and self-regulation, fundamental dimensions of union freedom and democratic freedoms in a substantive sense. It is up to the government to just respect it.
It is also worth clarifying that there are precedents for the recognition of the Trade Union Charter for more than one union entity of a higher level, ensuring representation to more than one, respecting the limits of the base of each of them. From this type of conformation, a kind of plurality is ensured between higher-level entities, which, however, is only apparent: there is no overlapping of entities in relation to their respective bases. Each federation represents only the base linked to it, without overlapping or acquiring legitimacy over the base of the other. In this way, it is up to Proifes, at most, to represent its tiny base, without advancing on the historically conquered and frankly majority base of Andes-SN and Sinasefe.
Persistent anti-union conduct is a serious attack on education and Brazilian democracy
As stated, the recognition of Proifes as a union federation does not revoke the union registration of Andes-Sn and Sinasefe, which remain politically and legally legitimate union entities for teaching representation at the federal level. The Federal Constitution prohibits “the creation of more than one trade union organization, at any level, representing a professional category” (CF, art. 8, II). The registration of Proifes is not to be confused with either the recognition of national union representation to Proifes, nor with the attribution of union plurality in the teaching category, through a governmental act.
Even if a governmental act could create representation and deconstitutionalize the Constitution, the union plurality would have to respect rules of negotiating legitimacy. As we discussed, “even in countries where there is full experience of freedom of association, with plurality, there are rules for carrying out collective negotiations in plurality – since the agreed instrument must be one for the entire category. These rules range from indicating the most representative union as the legitimate holder of negotiations in favor of the entire category to the equal composition of a negotiating front, considered in proportion to the representation of each group. What is unprecedented, even because it is contradictory to any democratic logic of collective action, is for the least representative union to assume ownership of negotiations in favor of the entire category”.[3]
The sudden and strangely opportune – not to say opportunistic – government act of registering Proifes, incapable of granting negotiating legitimacy to this minority entity, reveals the anti-union nature of the government's conduct, by facilitating the representation of the entity it chose to negotiate, in an act of arbitrariness and disrespect for the choices legitimately made by the teaching category. Proifes' request for union registration was requested in 2009 and only granted in June 2024, in the midst of a strike collective bargaining process, in which the party granting the registration, the federal government, is directly interested in ensuring that the requesting party of registration, Proifes, have assignments of representation fractions of the teaching category granted. The acts of granting union registration without meeting legal requirements (CLT, art. 534) and entering into negotiations, across the entire category, with the least representative union entity are combined.
The result is anti-union conduct by the Lula government, which inadvertently adds to the extreme right's position in relation to public universities and education. It is worth remembering that the University and the teaching category were targets of preferential attack from sectors of the extreme right, as was evident with the denialism that devastated Brazil during the pandemic period. The role that the Lula government indicates for union policy is quite explicit: favoring government positions. On the day this text was finalized, the President stated that union leaders “(…) must have the courage to end the strike” and that either the strike movement retreats, or it will be defeated, due to “starvation” or “demoralization”.[4]
Is the Proifes/Federation agreement with MGI legally valid or not?
Proifes misinforms the teaching category by distorting information regarding the approval of their union registration. On its website, it states that: “By granting union registration to PROIFES, the Ministry of Labor legitimizes the union nature of the Federation, enabling it to exercise without any limitations, thus being able to participate in all negotiations, sign agreements, in short, broadly represent the category of unionized teachers to their base unions”.[5]
For Proifes, it follows from the mere recognition of its union nature, through the governmental act of union registration, the authorization of powers “without any limitations”, including participating in “all” negotiations and “representing the category of unionized teachers to its base unions”.
The entity intentionally confuses union registration with union representation and negotiating legitimacy. It attributes to the formal governmental act of recognizing the entity as a union federation powers that this act is not capable of offering, such as the possibility of majority representation and “without any limitations” of the teaching category.
Union registration, first, is limited to the representation of Proifes' tiny union base. Therefore, it does not create representation at a national level, does not legitimize negotiation and does not turn back time. When it signed the agreement, Proifes did not have a union registration. The federal government was aware that it was not negotiating with the representation of the teaching category and decided to “shoot itself in the foot”.[6] The subsequent union registration does not remedy the nullity that takes over the signed agreement, as already declared in court, even because, according to all the arguments brought here, the new agreement would still be null, as Proifes' lack of negotiating legitimacy persists.
In Brazilian union politics, led by the Lula government in unfortunate negotiation episodes with Proifes/Federation, distortions, opportunism, illegalities and anti-union conduct accumulate, which strengthen the extreme right and attack the education movement in Brazil. In response, the federal education strike highlights the strategic dispute over public funds and builds important collective learning in the discussion about union representation and political organization in the public sector.
Union freedom is built, on the streets, in assemblies, based on the consistent and enlightened mobilization of the category. Freedom of association is not achieved through the stroke of a State body, nor through agreements with authorities. The strike also teaches about this value and about democracy, and it is with this aim that the teaching category remains mobilized and in struggle, certain that it educates for and for democracy.
*Lawrence Estivalet de Mello is a professor of Labor Law and Trade Union Law at the Federal University of Bahia (UFBA).
*Renata Queiroz Dutra is a professor of Labor Law at the University of Brasília (UnB).
Notes
[1] MELLO, Lawrence Estivalet de; DUTRA, Renata Queiroz. Five lessons about the invalidity of the Proifes agreement with the federal government. Forum Magazine, available at: https://revistaforum.com.br/debates/2024/5/30/cinco-lies-sobre-invalidade-do-acordo-da-proifes-com-governo-federal-por-lawrence-estivalet-de-mello-renata-queiroz-dutra-159686.html
[2] SALDANHA, Henrique. The federal teaching strike and the role of the Proifes Federation. Esquerda Online, available at: https://esquerdaonline.com.br/2024/05/29/a-greve-docente-federal-e-o-papel-da-proifes-federacao/
[3] MELLO, Lawrence Estivalet de; DUTRA, Renata Queiroz. Five lessons about the invalidity of the Proifes agreement with the federal government. Forum Magazine, available at: https://revistaforum.com.br/debates/2024/5/30/cinco-lies-sobre-invalidade-do-acordo-da-proifes-com-governo-federal-por-lawrence-estivalet-de-mello-renata-queiroz-dutra-159686.html
[4] AGENCY BRAZIL. Lula criticizes the extension of the federal teachers’ strike. Available in https://agenciabrasil.ebc.com.br/politica/noticia/2024-06/lula-critica-prolongamento-da-greve-dos-docentes-federais
[5] PROIFES. PROIFES-Federation has an official Trade Union Charter. Available in: https://proifes.org.br/proifes-federacao-tem-carta-sindical-oficializada/
[6] POMAR, Valter. Feijó elects Proifes. Available in:https://valterpomar.blogspot.com/2024/05/feijoo-e-cupula-do-proifes.html?m=1> Published on: May 27, 2024.
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