27.11.2017

From Brasília a Guarulhos: planned chaos and violence as method*

*This article is the result of an edit of the reports “De Brasília a Guarulhos: caos planejado e violência como método” and “Corpos no canteiro: a normalização discursiva e legal da exploração do trabalhador da construção civil” [“From Brasília to Guarulhos: planned choas and violence as method” and “Bodies at the worksite: the discursive and legal normalization of the exploitation of construction workers”], both part of the series of reports realized for Projeto Contracondutas and combined in the book Por trás do Tapume [“Behind the Hoarding”], by Sabrina Duran (2017).

If the plywood fences that enclose and conceal the worksites of big construction projects were removed, what would passersby see? On the most generic and comprehensive level, they’d see trucks unloading sand and stone, concrete mixers, tractors, cranes and perhaps even a pile driver in operation. They’d see iron structures being erected, and blocks of concrete, bricks and sacks of cement stacked up here and there. They’d see men wearing blue, yellow or orange uniforms made of thick fabrics, boots, gloves and helmets. Each one would be engaged in repetitive movements at one end  of the worksite or the other, some operating machinery, others sawing, others welding, some hanging from the structures, on suspended platforms, building at high altitudes; still others digging, transporting dirt, going from place to place with fully loaded wheelbarrows. Adding color to the scene, a reddish mud is caked on everything and, in the background, the combined sounds of machines operating and the grinding of the workers’ tools forging destinies out of raw materials.

Anyone passing in front of a large construction site free of plywood fencing would see all of this, but they certainly would not see the macro-relationships between production and labor that make the contemporary construction site one of the main fields for the extraction of profits based on exploitation– and overexploitation– of the non-remunerated labor of construction workers. A real and attentive examination of this worksite would demonstrate the impact of macro-exploitation on a micro-scale of the life each worker: exhausting work hours, muscle and mental fatigue, work-related illnesses (such as silicosis and cataracts due to exposure to the sun), the occurrence of incapacitating or fatal accidents, in addition to, of course, extremely low salaries, not even enough for a dignified living space and food. A magnifying glass over this specific worker will reveal yet another consequence, perhaps less common, but a reality in the overexploitation that takes place on the worksite: the use of slave labor, characterized in Article 149 of the Brazilian Penal Code as forced labor, exhausting workdays, degrading work conditions and any restriction of a worker’s freedom to come and go due to debts incurred from employers or responsible agents (BRASIL, Decree law no. 2848/40, 1940).

Violence on the worksite: casualty or calculation?

Up until the 1930s, there were plenty of qualified people working on construction sites. Eclectic architecture itself demanded this, the intelligent collaboration of those executing the labor. Many of the workers had come from Italy, egresses of the revolutionary trade unionism that left a few marks here. (…) With the project of national development, this scenario changes. Objectively, there is an urgency to accumulate (…). Slowly, in the early 1930s, more quickly by the end of the decade, models of architecture adapted to the change are developed. Architecture adopts more sober lines, believes that it has unburdened itself of the ornaments to which it was condemned (actually, of the details that implied a qualified workforce and instructions for correct constructive procedures), seeks simplified geometric forms, with which it could utilize a less qualified and more submissive workforce, since the new labor union guidelines, having become distanced from revolutionary tendencies, were no longer demanding more power, but instead better salaries, vacation time, etc. Little by little, with the trivialization of the new models, the qualified part of the worksite is reduced (Ibid., p. 308-309).

This historical summary provided by Ferro in a 2003 interview exposes, in a synthetic manner, the genesis of the intensification of the exploitation of construction workers and, as a consequence, the increase in worksite violence. The reason for this change as indicated by the architect is the necessity for accumulation in the industrialization of Brazil. It is the worksite, says Ferro, that produces “the mass of value that fuels the country’s leading sectors.”

The construction of Brasília, from 1956 to 1960, exacerbates this process. Coming mainly from the impoverished regions of North and Northeast Brazil, an army of laborers, most of whom are unskilled, flocks to the middle of nowhere – the immense construction site that will give way to Brasília in Brazil’s Central-West region – in search of work, any kind of work. President Juscelino Kubitschek’s “50 years in 5” plan had the construction of a new federal capital as its greatest metaphor: doing so much in little time, building a new city from scratch, expanding work days and reducing salaries, accumulating more and distributing less. There are many reports of accidents and worker fatalities on the construction site of Brasília.

For architect João Marcos de Almeida Lopes, professor at the University of São Paulo (USP) and one of the founders of the technical consulting firm Usina – Center of Projects for the Inhabited Environment, the relationship between construction workers and the means of production is unequal down to elementary levels. “A good part of the supplies that are brought to the worksite, and which need to be stored and transported, are normally placed in heavy, poorly arranged volumes. The tools, whose ergonomics are deliberately planned in favor of efficiency and their own resistance – and not to be comfortable for the workers – themselves sometimes weigh as much as the material they are meant to move (think of a shovel, for instance). The time spent to mobilize all the tools and process the material to be used in the work process (preparation of mortar, for example) steals significant portions of the exchange value of its merchandise, the labor that is purchased by capital,” Lopes describes. The objective of capital, the professor adds, is productivity and a return on investment, not the health or comfort of the worker.

Just like in the construction of Brasília in the 1950s, and in the building of large stadiums, dams and bridges in the present day, there is an army of impoverished potential laborers willing to sell their manpower on construction sites at dirt cheap prices. This availability is caused precisely by the forces of capital, which act in order to not guarantee full employment. As such, with an army of reserve manpower awaiting a remunerated activity, salaries can remain forever low and labor conditions don’t need to be improved– after all, there will always be those willing to do more for less. “This is not without some perverse irony: the ‘labor’ commodity is property of the worker. It is his to put up for sale, but it is those are who buying that establish the conditions of the deal– not those who are selling! (…). Therefore, the violence is not just the result of plunder, but also the conjecture that the production of more-value will take place: the less investment there is in the labor conditions, the more endogenous violence takes hold of the construction site, the greater the rate of relative added value extracted in the purchase of manpower,” explains Lopes.

Chain of agents

There are agents directly responsible for this structural violence on the worksite, according to the professor, the owners of the developers, the “cats” – recruiters of manpower – and the architects and engineers. The former, for treating the worker as “submitted, and not as the holder of a powerful machine that produces value, manpower, without which capital would not survive.” The “cats,” by seizing “a significant portion of the workers’ remuneration, merely on the basis of their work in recruiting and controlling the ‘pawns.’” They’re also the ones who put up a barrier [comfortable for the developers] between the hirer and the hired, being responsible for summary lay-offs and the expulsion of workers who eventually do not accept the submission. Ultimately, the architects and engineers, because they alienate and subjugate the workers through the design which only they, the specialists, control. “In this context, the architect’s designs, the blueprint, has the objective of uniting the separated, orchestrating services based on a logic and determination that comes from outside the worksite, guided by the exclusive need to adequately specify times and materials, reduce wastefulness and the need to repeat work, increase profits and extract a larger mass of added-value – and, in this sense, they are perpetrators of violence. This is why it strikes me as repugnant the way most architects boast of well-dimensioned proportions, of highly sophisticated detailing, of their well-arranged sets of volumes, forms, colors and textures – while construction workers hang dozens of meters up in the air, perched against blank walls of their own creation in order to make that ‘good architecture’ a reality. Increasingly fewer architects are concerned with the construction and, as such, fewer and fewer of them are concerned with the people who do the actual building. And it’s no different with the engineers: their current role in the dimensioning and execution of construction projects is to implement more precise mechanisms of dimensioning, planning and control, worrying little whether the constructive systems applied present greater or lesser risk, or if there are no strategies for executing the services that require less effort and suffering on the part of the workers,” says the architect.

The reflection on the prominent role of architects and engineers in the perpetuation of violence on construction sites is long and complex.

Less technology, more slaves: a worksite that has not evolved

In September of 2013, the developer OAS was caught by inspectors from the Ministry of Labor and Employment (MTE) utilizing slave labor in the construction of Terminal 3 of Guarulhos International Airport in São Paulo¹. A total of 111 workers were rescued, all of whom were recruited from their homes in Northeast Brazil by “cats” who had made false promises of high-paying employment and registered work cards. The workers arrived in São Paulo already in debt, since they had to cover the cost of transportation from their hometowns and a fee to the agents responsible for “expediting” their hiring for OAS. Furthermore, they were forced to bring their own work tools and pay rent for their accommodations, which were precarious and unsanitary. In this way, the developer avoided covering the cost of lodging for workers.

Aside from the question of how it is possible for one of the largest and most profitable construction companies in the country to recruit slave labor, there is another question, one which alludes to the reality in place before their hiring: what are the specific characteristics of a construction project that favors – and indeed actively seeks – slave labor for its worksite?

Anália Amorim, an architect, president of the Escola da Cidade Association, professor at the same school and the University of São Paulo College of Architecture (FAU-USP), looked into these specific characteristics. In a study conducted with professor Valdemir Lucio Rosa, in partnership with students Stela Mori Silva and Rafaella Luppino, the group sought to understand how the work for Terminal 3 of Guarulhos International Airport was executed, how it could have been executed and who benefitted from it being executed in that manner ².As a counterpoint, the study includes an analysis of the construction of Hospital Sarah Kubitschek in Rio de Janeiro, led by architect João Filgueiras Lima, AKA Lelé, who passed away in 2014 ³. The comparison of each specifies the materials utilized in each project, the amount of manpower employed and the constructive and design plans. “We made a comparison based on the fast-track building process, which is like changing a tire while a car is moving. This is how it went with Terminal 3 at Guarulhos Airport, and many projects are done this way. You start the foundation structure without even having the blueprints, without even knowing the modulation. This allows you to not have a pre-established order of magnitude estimate, because the thing is still in motion. It also allows you to make changes in materials and leadership [of the project] according to internal interests. And furthermore it allows you to use an unskilled workforce. For example, if the mortar arrives, it gets applied in three stages because there’s no interest in doing it all in one stage, which is more contemporary, more ecologically correct and the way it’s done in most any other country. After all, there’s an army of workers at your disposal, and this army is assimilated to the most rudimentary techniques. Since they’re there at your disposal, they enter as the workforce, and this is why building techniques aren’t able to advance. The way that construction workers are incorporated into the national economy doesn’t allow for construction or architecture to evolve,” explains Amorim.

And what about the hoists, the cranes, the trucks and pile drivers, all the heavy machinery invoked at the beginning of this text which are seen today at all the big construction sites, including Terminal 3 at Guarulhos International Airport? Sérgio Ferro informs us that the mechanization of the worksite is precarious and doesn’t reach the level of the bare essentials for the work, remaining instead the “manufacturing of a pretty lame model.” This is why it’s necessary “to not fall a victim to the illusion of industrialization that the multiplication of hoists and other secondary machines can suggest to imaginations far removed from the worksite. The manufacturing form of production remains dominant” (FERRO, 2006, p. 122; p. 141).

Meanwhile, in the case of Hospital Sarah Kubitschek, the prior planning and measurement of the project – especially from the perspective of the workers who executed the work – provided direction. The architect is part of a team that thinks and makes decisions from the very beginning of the project and in all of its aspects: electricity, hydraulics, safety, the specification of materials, etc. Lelé and his peers had a precise notion of the quantity and weight of the pieces, the transportation, the worksite logistics, the costs, the workforce that manufactures, transports and assembles them. “In this case, one can see that there is philosophy, politics and an economy attached to this architectural discourse, that the workforce is specialized, experienced, respected. There is a cost that can’t be included in more than 5%, and quality control and maintenance,” explains the professor. “The comparison of these two worksites, the fast-track and the pre-fabricated, allows the students to evaluate how to create their projects and decide what side they want to play on. These are the rules. The two construction sites were possible,” she adds.

Amália Amorim explains that, in order to execute this project, the architect Lelé had to fight against the developers, because he knew that the real cost of the project was four to five times cheaper than the price normally presented by the big companies. For the professor, saying that this overpriced estimate and the disrespect to the construction workers is not planned “is characteristic of an inefficiency and an innocence that we are no longer young enough to sustain. This disorder is absolutely planned. It is the chaos that makes all the actors involved work double in order to spend quadruple. Of course it’s planned.”

“Lista suja” (Dirty list)

Faced with a horizon of exacerbated accumulation, it’s clear that even some large, modern companies are eager to assume the legal risks of recruiting slave labor and human trafficking, being that any costs incurred from getting caught breaking the law are less than the advantages of accumulation obtained by breaking it. A collateral fact, but one that it is symptomatic of this “permeability” of real estate capital and slave labor, is that the registration and publication of the “dirty list” of companies caught submitting people to slave labor has been suspended since December of 2014. The point of the list, periodically updated and publicized by the Ministry of Labor and Employment (MTE), is “to inform society, in a transparent manner, of the employers that adopt these practices” and to subsidize “those companies that respect labor laws and have signed the National Pact for the Eradication of Slave Labor” (PLANO NACIONAL PARA A ERRADICAÇÃO DO Trabalho escravo, 2013). The suspension of its publication was the result of Abrainc – the Brazilian Real Estate Developers Association’s request to the Federal Supreme Court through an ADIN (Direct Action of Unconstitutionality). On December 27, 2014, just five days after the ADIN had been filed and in the middle of Christmas recess, minister Ricardo Lewandowski granted an injunction suspending the list’s publication. The president of Abrainc is Rubens Menin, of MRV Engenharia, a company that has been caught employing slave labor on at least five separate occasions. Of the six other businesspeople who comprise the association’s board, the companies of four of them – Cyrela Brasil, Cury Construtora, Tenda and Brookfield – have also been fined for the same reason.

“I agree with the authors who consider slavery today to be a component of the process of capital itself,” writes sociologist José de Souza Martins in “A reprodução do capital na frente pioneira e o renascimento da escravidão no Brasil” [“The reproduction of capital on the pioneer front and the rebirth of slavery in Brazil”] (MARTINS, 1994). In this article, the author defends the theory that “slavery by debt is an extreme variation of salaried work in conditions of overexploitation.” “This is the case of [Tom] Brass, for whom ‘capitalism is not only compatible with unfree labor, but in certain situations it prefers it to a free labor force,” completes Martins (Ibid.).

Echoing the Brazilian sociologist, his French colleagues Luc Boltanski and Ève Chiapello add: “capitalism is doubtless the sole – or at least the main – historical form organizing collective practices to be completely detached from the moral sphere, in the sense that it identifies its purpose in itself (capital accumulation as an end in itself) and not by reference, not simply to a common good, but even to the interests of a collective entity such as a people, a state, or a social class” (BOLTANSKI; CHIAPELLO, 2009, p. 20).

Does it make sense then to talk about a “dirty list” if capitalist rationality is itself amoral? It does, from the perspective of denouncing and resisting violent practices to extract profits, which compromise the health of workers and, at their most extreme, put their lives in danger. But it is evident that the horizon of accumulation that is placed on the capitalist worksite is refractory, structurally speaking, to a virtual elimination of exploitation and the “humanization” of the construction workforce. What perhaps counts as a synthesis of the exposure of conflicts in the meager space of this text is that there is still a lot of room for critical reflection on the capitalist worksite.

Bodies at the worksite: the discursive and legal normalization of the exploitation of construction workers

At the construction site in Ermelino Matarazzo in São Paulo’s East Zone, the workers arrived early to not work. The day before they decided to stop construction because they hadn’t received their salaries from December, nor their thirteenth salaries and, with January coming to an end, they had little faith that they would be receiving that month’s salary either. The construction materials, however, kept getting delivered. The rented backhoe was also still there on the worksite, with an employee from the rental company ready to operate it. It was 6:30 AM and the workers were gradually arriving from the quarters, less than 500 meters from the site, and heading up the mud hill which led to the cafeteria. In the cafeteria that had no electricity, they waited for breakfast supplied by the contractor that had hired them. The food was delivered by a motorcycle deliveryman: bread with cold cuts, coffee and milk..

After breakfast, Luiz Carlos dos Santos Filho, Daniel dos Santos and João Messias de Almeida, members of the base team of the São Paulo Trade Union of Construction Industry Workers (Sintracon-SP), held an assembly with the workers to talk about their labor rights and the violations that had been committed against them by the employer. The team from Sintracon-SP was there because they had received a complaint regarding the non-payment of salaries and the degrading conditions in the the quarters. It was collectively decided that the project would be paralyzed until the company paid what it owed. Some of the workers reported having been threatened and pressured by their employers when asserting their rights. After the meeting and the inspection of the worksite, the team from the union headed on to the quarters, accompanied by the workers.

Two bathrooms, 20 men

 A two-story house with an area of around 70 m2, two bathrooms and virtually no ventilation was home to roughly 20 men. The number of inhabitants increased as the company hired more workers and placed them at the same address. There was a strong stench of sewage that could be smelled immediately upon entering the structure due to the excessive use of an insufficient number of toilets. The sleeping mats provided by the company  for the workers were used, having been brought from another lodging facility. Most of them were worn, dirty and filled with holes. Assistant construction worker Tiago Santos Dias, 23, had to be taken to the hospital due to an allergic reaction brought on by bedbug bites. Since there weren’t enough beds for everyone, the workers took it upon themselves to improvise bunk beds, made from scraps of wood. Makeshift taps into the electrical grid could be seen everywhere, with exposed wires within the reach of anyone who circulated inside the house.

The workers blamed the company that had hired them for the precarious conditions and the lack of payment. Meanwhile, the construction company blamed the State of São Paulo for not having transferred funds. The project in question is a complex of 117 housing units built by the CDHU (the Company of Housing and Urban Development) at the cost of over R$7.2 million. Work began in August of 2014 and should have been completed by February of 2016.

Choreography of degradation 

The above description accounts for the human rights violations in relation to the workers’ living conditions, the most visible in the construction industry. These are the sorts of violations that usually lead to actions on the part of the Ministry of Labor and Employment (MTE) and the Public Ministry of Labor (MPT) to combat the employment of slave labor. The degrading living conditions in the lodging facilities is, to a certain extent, easier to verify and, as such, framing them according to the definition of slave labor conditions as described in article 149 of the Penal Code is an objective task. “The question of accommodations holds up better, because you have various attributes that lead to degradation. In the development of the work itself, slave labor can be substantiated. The problem is that what qualifies as degradation [in the exercise of work on the construction site] remains a bit open to interpretation. For example: a strenuous workday is one of the items that qualifies as degradation. But what is strenuous? Up until what point? There are people who argue that strenuous is that which goes beyond the maximum limit of the existing specifications of a workday. Today the workday is specified as 8 hours, but you can, according to legal permissions, have an extension of up to 2 hours per day, so the maximum workday would be 10 hours. Anything longer than 10 hours would be strenuous. The problem is that this is a doctrinal concept which is yet to be incorporated into the law and adopted by the courts. So it is very probable that there is strenuous work being done on construction sites without it being identified. You can have this in relation to other attributes, such as excessive danger, issues of safety, etc. The problem is that without this specific definition, and with no consensus, what serves as the solid nucleus in regard to slave labor is the question of lodging, the fraud in the transportation of workers [recruitment] and the lack of registration of hiring [on employment history cards],” explains Ruy Fernando Cavalheiro, a prosecutor for the Public Ministry of Labor in São Paulo.

The choreography of the bodies on the worksite, forged by the history of relationships of workforce exploitation, appears normal to the eyes. It is common to hear that construction work is exhausting and dangerous, but it is uncommon to question the reason these exhausting, dangerous conditions have been maintained for decades, even with the evolution of construction materials, techniques and procedures, as well as construction safety measures. “What can be verified based on a revision of the debate on  industrialization and health and safety in construction is that changes in production techniques in Brazilian capitalism only occur when they are directly linked to better financial results. Despite having been developed years ago and widely disseminated, technology that could be incorporated into the construction site in aims of making a safer work environment have been constantly rejected by the nation’s business leaders,” writes researcher Melissa Ronconi de Oliveira (2016).

It is possible to survey the degradation of work on construction sites based on the body that is submitted to it and its relationship to the space where it is subjected to violence. In the choreography of bodies at the construction site, degradation may not be visible to those on the outside, but it is felt by those on the inside. It’s in the vertigo experienced by those working high up while never having received adequate training for it; it’s in the scar on the eye left by a scrap of ceramic that broke off during the cutting process; it’s in the chronic back pain or the fatigued muscles of legs and arms resulting from heading into the pit and back up from it, pushing over 100 kg of concrete blocks over a six, seven-hour period; it’s in the purple finger pressed between blocks; it’s in the physical and mental exhaustion caused by the hear; it’s in the sunburn and the sleep disorders that afflict those who operate drills and jackhammers; it’s in the hearing loss, the labyrinthitis; it’s in the respiratory ailments brought on by the continuous absorption of dust and chemical products; it’s in the infections caused by micro-organisms contracted when working with sewage piping; it’s in the stress and depression caused by confinement to the construction site, with the workers sleeping and waking always on the premises of the worksite. And the list goes on.

A survey of the degradation of working on a construction site capable of condensing into a map the deterioration of the bodies exploited in construction work, as well as the activities that deplete these bodies, would perhaps show a downward curve of a body starting its professional life healthy, but which is severely worn out in a relatively short period of time. This degenerative line certainly could not be seen as natural when compared to other lines of bodies worn out by other activities that are less or not at all degrading.

BOX vertical

Edivaldo Firmino da Silva, 31, Alagoas

“I’m an assistant, but I work as a construction worker. I carry blocks here and there. I carry them to work there at the bottom. There at the top, there’s a buddy who sends someone to carry the blocks up, but someone isn’t always available to get them so I stay there getting the blocks to be able to work. Sometimes I go to get them, I get the concrete mix, I get blocks. These things are the hardest. If you have somebody with you, it’s easier, you produce more. In my case, it diminishes my production. They have assistants here, but not for everyone. Sometimes there’s just one person carrying, another unloading. I carry the blocks. After I put up the scaffolding, spread the mortar and put down the layers of blocks. Those of us who work with blocks have to work with [cutting] machines. We have to wear masks, glasses, because the dust from the blocks is filled with chemicals. It can make us sick. Once I was working with ceramics and a spark flew into my eye. I almost lost my eye. For a long time it was swollen, tearing up all the time. I couldn’t close it right. This didn’t happen here. It was on another worksite. Here, if you say you won’t do certain things, they threaten you, say they’re gonna let you go. How can a person work like this?”

Acceleration of processes: the logic of the construction site’s finances

Over the last decade, the production of housing in Brazil has undergone structural transformations, having a direct impact on the bodies on the worksites. In 2006 and 2007, 25 developers and real estate companies went public on the stock exchange (SHIMBO, 2016). With this, the logic of financial capital started to be transposed with the production of construction. “For a company to go public and to be able to converse with shareholders in various parts of the world, it needs to, first of all, have standardized information and accounting. I find the same report that I find in France in Brazil, for example. There is an ‘internationalization’ of these codes, of this information on production. There is also a structure of corporate governance, which is the structure of administration, boards, which the shareholders themselves end up influencing. This is true in theoretical terms. In terms of production, and what has to do with the construction site. These companies end up no longer being evaluated according to an industrial logic, or, in other words, simply producing a product and making a profit, but by an idea of profitability and liquidity. This is a new pace that finances end up setting for the production of construction. You need higher velocity in order to get the capital employed in the company to turn over. To deal with this new pace, subcontracting, which has always been an adopted practice, becomes even more widespread in order to manage these shorter deadlines. In subcontracting, the main company, in the case of the big developers, often times ends up not having absolute control over this. And it’s in the fragmentation of subcontracting that gaps open up for slave labor. It’s a point that can get lost. I don’t see this as an anomaly in the system, but as something that can be understood as a consequence,” explains Lúcia Shimbo, a professor and researcher at the University of São Paulo Institute of Architecture and Urban Planning (IAU-USP).

According to researcher Vitor Araújo Filgueiras, cited by Melissa Ronconi de Oliveira, “outsourcing promotes a greater tendency toward transgression in the physical limits of workers. It emboldens the nature of employment to disrespect the limits of work exploitation, in this case, supplanting the worker’s physical limits” (FILGUEIRAS, 2015, p. 75).

Pedro Arantes, an architect and professor at UNIFESP states that the trend toward precariousness in construction labor is a global phenomenon, one which ends up serving a logic of the expansion of profits. “The use of migrant, precarious labor, in conditions equivalent to slavery, takes place at construction sites everywhere, even in Germany, the United States, because it depends on a certain type of mobilization of workers’ effort to construct a special merchandise which is ultimately unique, in a place that also requires that the merchandise be stationary, that it’s stuck, attached to the ground. This is different from merchandise made in a factory, where there’s an assembly line, the pieces and the merchandise are moved and the workers are, in general, positioned, creating a work routine and control over circumstances of risk. In the case of commercial construction, the merchandise is stationary and those who move around it in the most critical situations, in its deep foundations, working at high altitudes facing the risk of falling, are the workers. There is a risk that is more or less inherent, but it is evident that when this is exploited by capitalists companies, it turns into a condition for increasing profits.”

Dismantling the fight against slave labor 

Faced with the intensification of the exploitation of workers on construction sites, the Ministry of Labor and Employment (MTE) and the Public Ministry of Labor (MPT) – responsible for monitoring and combatting worker exploitation equivalent to enslavement – have been gradually scrapped by the last few federal administrations. There is no contradiction in this, but there is a relationship of cause and consequence. In a context of increasing violations, there is a need to conceal them, whether through an ideological discourse that relativizes acts of violence or by dismantling the institutions whose function is precisely to investigate and prosecute companies that violate the human rights of workers. “The MTE is scrapped. They haven’t held public service exams in a long time. In Guarulhos, for example, where there should be 25 auditors, they have 16, and it’s not possible to cover everything that we have to do. There is a general non-compliance with the law due to the lack of personnel. With the change in the [federal] government last year, things were cut short. There was a virtual across the board change in the MTE’s supervisory bodies. They removed a bunch of career people and put others in their place who, let’s say, are not suited for the work. All this in a context of greater reduction in social rights led by the three powers of the Republic, unfortunately. We are seeing decisions from the Federal Supreme Court (STF) that are removing the corner stones of labor laws. The Union wants labor and pension reform, making it so those who do strenuous work, which, as a general rule, is low-paying manual labor, have to work from age 16 to 65. People are going to be worked to death. Labor rights are under attack, and deflating the concept of work conditions equivalent to slavery is also within this context. Deflating the concept of labor equivalent to slavery will only serve to do one thing: make it so that things which today are prohibited will be allowed to be done, and people will continue to overexploit others,” says prosecutor Ruy Fernando Cavalheiro.

The national coordinator of the MPT’s Eradication of Slave Labor program, Tiago Muniz Cavalcanti endorses Cavalheiro’s criticism, and points to the employer class with seats in the nation’s congress as among the main organizers behind the regressions in the protection of human rights. “At the same time that we have evolved in the fight against slave labor, like with the approval of Constitutional Amendment 81, which establishes the expropriation of the land of salve-holding employers, we also see the scrapping of the career of labor inspector, a lack of civil service exams, the non-disclosure of the dirty list [the federal government register of the names of companies caught exploiting slave labor]. This, of course, is going to have a negative impact on the fight against slavery. And this is nothing new; it has been coming from previous governments. When we talk about the national congress, we always hear voices that oppose the fight against slave labor in all aspects. We have the ruralist caucus, the extremely strong employment caucus. It is a well-known fact that the economic powers call the shots in the national congress. The project for the new Commercial Code, for example, prohibits the realization of inspections without prior communication to employers at least 48 hours in advance. Furthermore, it prohibits the realization of inspections by more than one state agency simultaneously. In other words: this is something that is blatantly directed [at disarming] the fight against slavery.”

The limits and potentials of TAC

Created by article 211 of the Statute of Children and Adolescents and by article 113 of the Consumer Defense Code, both from 1990, the Term of Adjustment of Conduct (TAC) is a legal instrument used in, among other contexts, the prosecution of companies caught exploiting workers in slave labor conditions. Through a TAC, the prosecuted company readily agrees to comply with the labor laws that it has violated, and compensate the workers for the injuries inflicted on them, including any withheld payments, fines, severances, compensation for moral damages, etc.”. in relation to legal action, TACs make it easy to skip some steps in producing evidence, which can be quite time-consuming. Here you have an instrument that sanctions the company immediately; a judicial action takes much longer. With TAC, the company immediately commits itself to regularizing its conduct. It is an attempt to directly mitigate the damages,” explains Christiane Vieira Nogueira, a prosecutor for the Public Ministry of Labor in São Paulo and one of the people responsible for prosecuting the developer OAS for employing slave labor in the construction project to expand Terminal 3 of Guarulhos International Airport (CONTRACONDUTAS, 2016).

Having an educational aspect, the values of the fines which TAC charges prosecuted companies are designated for the Fund for Collective Rights (FDD), the Fund for Workers’ Aid (FAT) or for civil society institutions that realize projects connected to the eradication of slave labor conditions. “Many prosecutions have a set of projects. In the case of Guarulhos [Airport], we held an audience with the company and the State Commission for the Eradication of Slave Labor, a committee of various civil society organizations, [to provide an outlet for the fine money]. There’s no strict criteria [for the use of the funds],” explains Nogueira. Several organizations received part of the fines paid by OAS in order to hold activities concerning the fight against slave labor in the construction industry. The Escola da Cidade was one of them, with the proposal of the project Contracondutas.

Despite the advantages of speed and objectivity in its application, TAC is also the subject of criticism due to what is sometimes deemed its “conciliatory” nature toward slave-holding companies. This, in theory, compromises the educational potential of the instrument, especially when in the application of a TAC there is no monetary sanction to the company prosecuted. “In the meantime, inspection institutions maintain a posture that favors conciliation, reinforcing the impunity of employers that do not comply with labor regulations. The Term of Adjustment of Conduct (TAC) is supposed to have an educational function, without entering into a judicial conflict. However, by disseminating the use of this instrument – which in most cases does not result in a monetary fine –, by the logic of competition, those who comply with the law and dispense with capital in doing so, are at a disadvantage in relation to those who break it,” writes researcher Melissa Ronconi de Oliveira. “In addition, many of the TACs issued simply reproduce the content of the laws. When there is an infraction of the law, but there is no financial penalty or punishment of any kind, it is completely inconsistent with the judicial character of a regulation. In our economic system, if the violation of the law does not generate any sort of financial sanction, the State, though perhaps unconsciously, is encouraging the non-compliance with that very law on the part of the capitalist offender. (…). TACs issued without a set payment schedule of indemnities for collective moral damages presumably serve as incentives for other companies to also disrespect labor laws, thus annulling any educational possibility,” adds Oliveira, quoting labor prosecutor Ilan Fonseca de Souza (SOUZA, 2015).

“Like any other instrument, a TAC can be effective or not, depending on how it is used. The law itself doesn’t have the power to restructure the way capitalism functions in Brazil and the world. We do not claim to wield such power, within a system to which the law itself often contributes. It’s possible to have this critical vision. But this does not invalidate the use of these instruments to improve some aspects of workers’ lives,” argues prosector Christiane Vieira Nogueira.

For the national coordinator of the MPT’s Eradication of Slave Labor program, Tiago Muniz Cavalcanti, TACs are effective in a general manner. Specifically, they help to resolve what he considers to be a constraint on the struggle against slavery. “The fight against slavery in the country always functions on two fronts: the preventative and the repressive. The repressive can be conducted through the sentencing of slave-holders to imposed penalties of 2 to 8 years of reclusion; by way of administrative repression, with fines and infraction notices issued by the MTE, inclusion on the dirty list of slave labor employers, etc.; and by way of civil-labor repression, which is up to the MPT. Meanwhile, prevention can be primary and secondary. Primary in cases in which the illicit has yet to occur, or in other words: assuring dignified work, health and education in those communities that are home to potential victims. Secondary prevention applies when the illicit has already occurred, and we need to provide the victims with shelter in all aspects, retraining them and reverting vulnerability factors so that they never again become victims of slave labor. And here I can say with complete tranquility: the constraint is on secondary prevention, because there are no public agencies that provide shelter to these victims, because we do not have technical knowledge; the public institutions (MPT, MTE, the Federal Public Defender, the Federal Public Ministry) involved in the fight against slave labor are not equipped to enable this part of the action. Through TACs, the MPT is able to revert the funds [of fines charged to prosecuted companies] back to organized civil society. These funds end up being utilized by NGOs and agencies that work with retraining workers and reinserting them into the job market in a dignified manner.”

Nogueira states that TAC as well as judicial actions and even the efforts of labor unions or any other isolated initiative to combat slave labor should not be viewed as “saviors of the nation”. “The efforts need to be concurrent: inspection, organization of workers, it all needs to be happen simultaneously,” the prosector concludes.

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