By Gabriela Sarmet
The outsourcing of workers imposed by the mining sector has worsened after the “Labour Reform” of Temer and Bolsonaro. Today, more than 50% of workers in the sector are outsourced. This represents fewer rights, more precarious work and greater vulnerability in extreme cases that require reparation.
The rupture of Vale’s dam in Brumadinho three years ago today, illustrates these distortions.
It is the families of outsourced workers who died in the incident who face more difficulties in receiving what they are entitled to. In an appeal, Vale considered “exorbitant” the amount of R$1 million for moral damages for each death.
In November 2021, the Labour Court disagreed with the claim and ordered Vale to pay R$1m to each family. The mining company appealed the decision and the dispute continues in the second instance in the Regional Labour Court (TRT-MG).
This is one of the first cases in Brazil to judge a worker’s moral damage suffered exactly at the time of their death. In this case, the union replaces the workers when they can no longer act. Compensation should be made to the dependents of these workers.
The rupture in Brumadinho, which killed 270 people, is considered “the worst work accident in the history of Brazil”. While it claims it is “exorbitant” to pay R$1 million for each worker who died under its responsibility, Vale has posted net profits of around R$90 billion in the 2021 year-to-date to the third quarter.
The suspension of payments to shareholders, implemented after Brumadinho, was short-lived. Since the resumption of the distribution of profits and dividends, more than R$60 billion have been pocketed by shareholders, with R$40 billion referring to the first half of 2021 alone. This value is higher than the amount (R$37 billion) agreed with the government of Minas Gerais, without the participation of those affected, as reparation for the disaster. The money is being used by Romeu Zema, the state governor aiming for reelection, for works throughout the state, such as the privatization of the Belo Horizonte underground.
According to Eduardo Armond, director of the Union of Heavy Construction Workers (SITICOP MG), which leads the action along with 2 other unions, the action represents 98 outsourced workers who died in the dam collapse.
Another action, by the Metabase union, represents 131 workers who died and were direct employees of Vale.
The outsourced workers are mainly from the areas of heavy construction and catering. But there are still workers without any kind of labour representation.
In June 2021, the same judge of the 5th Court of the TRT-MG, in a similar decision, determined the payment of the same amount to the workers directly employed by the mining company. It was an unprecedented decision in lawsuits involving the case, by acknowledging that the very victims who died also suffered moral damages which, therefore, should be compensated.
Vale tried to appeal saying it was an “absurd”, “exorbitant” and “astronomical” value, pointing out that there is no “death damage” in Brazilian law and that moral damages would not be transmitted by inheritance.
Vale’s defence also claimed that “the risks of the Brumadinho dam bursting were unknown”, despite the fact that the mining company has already been convicted in the civil sphere and, in the criminal level, is a defendant in a criminal case in which the MPMG denounces the company’s responsibility for the dam collapse. Vale’s appeals were denied.
Paying R$1 million to all outsourced workers will cost Vale R$98 million. A fraction of the R$40 billion that enriched shareholders in just one half of 2021.
The Association of Families and Victims of the rupture in Brumadinho (Avabrum) is holding several actions today, including a visit to the memorial created to honour the dead, a conversation circle, a motorcade and an act at the city sign.
Risks were neglected, concludes Judge
According to Armond, the distinguishing feature of this class action is that they have managed to present new documentation containing further expert assessments of the case. An independent investigation report was drawn up with the aim of contributing to ascertaining the causes and responsibility for the dam collapse.
“It is evident, in this way, that the risks of the dam rupture and its consequences were known and were consciously neglected,” concluded the judge when analysing the report.
In addition, the sentence also rejects the insensitive defence of the mining company in relation to the transmission of compensation through inheritance: “Considering that the aforementioned provisions [Brazilian labour legislation] establish nothing about the beginning and end of personality and also do not prescribe rules for the transmissibility of inheritance, the conclusion [of Vale] that “in the light of labour legislation, once civil personality has been extinguished, there is no right to compensation for extra patrimonial damage” is shown to be mistaken”.
“I think the case will go all the way to the Supreme Court, because Vale says it has already paid the compensation, but in fact that was the compensation to the family members. It is not the compensation of the dead worker”, commented the director of SITICOP-MG.
The trade unionists’ expectation is that, after the judicial recess, a hearing will be scheduled to discuss details of the compensation.
In 2020, a UN report stated that Vale’s conduct in Brumadinho was “criminal and reckless”. To date, no one has been criminally punished for the rupture. The case is on hold awaiting a jurisdictional dispute.
In December 2020, another Vale outsourced worker, Júlio César de Oliveira Cordeiro was buried alive while operating a backhoe in an area of a Vale tailings pit in the same location as the incident in Brumadinho. Júlio Cordeiro, 34, left behind his wife and a 3-month-old son. Two weeks earlier, Vale was warned about the possible risks of the operation in that area, which was even halted by the National Mining Agency (ANM).
Vale says it has already made agreements with 1,700 family members of deceased workers
Vale said it “is attentive to the situation of those affected by the rupture of the B1 dam and, for that reason, has been carrying out agreements with the workers’ relatives since 2019, in order to guarantee fast and full reparation. The labour compensation is based on the agreement signed between the company and the Labour Prosecutor’s Office, with the participation of the unions, which determines that parents, spouses or companions, children and brothers and sisters of deceased workers receive, individually, compensation for moral damage. There is also the payment of additional insurance for accidents at work to parents, spouses or partners and children, individually, and the payment of material damage to the nucleus of dependents”.
According to the mining company, “monthly day care aid is also paid to the children of deceased workers aged up to 3 years old, and monthly education aid to children aged between 3 and 25 years old. Finally, a lifetime health plan is granted to spouses or companions and children up to 25 years old. Since 2019, agreements have already been signed with more than 1.7 thousand family members of deceased workers, and more than R$1.1 billion has been paid within the scope of the Labour Justice.”
The Office of the Union Public Defender (DPU) states that its position is “that contained in the technical note of Polos Cidadania, in the sense of the legitimacy of the conviction and the need to increase the fixed amount”.
The original Brazilian Portuguese article by Observatório da Mineração is here. This English translation was made by the author, who is also an associate member of the London Mining Network.