Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 300, Noviembre 1995

Caso núm. 1844 (México) - Fecha de presentación de la queja:: 31-MAY-95 - Cerrado

Allegations: Withdrawal of the registration of trade union organization and interference in the setting up of a new trade union

1. 215. The complaint in this case is contained in communications from the Single Trade Union of Workers of the Secretariat of the Environment, Natural Resources and Fisheries, dated 31 May and 17 July 1995. The Government sent its observations in communications dated 31 August and 21 September 1995.
2. 216. Mexico has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87). It has not ratified the Right to Organize and Collective Bargaining Contention, 1949 (No. 98).

A. The complainant's allegations

1. 217. In its communication of 31 May 1995 the Single Trade Union of Workers of the Secretariat of the Environment, Natural Resources and Fisheries states that its trade union organization was set up in 1977 and registered by the Federal Conciliation and Arbitration Court under the name of the Single Trade Union of Workers in the Fisheries Department; this name was subsequently changed to the Single Trade Union of Workers of the Fisheries Secretariat after the Fisheries Department had become the Fisheries Secretariat.
2. 218. The complainant organization adds that after the Organic Act of the Public Federal Administration had been amended on 28 December 1994, it was decided that those working in the Fisheries Secretariat would be integrated into the Secretariat of the Environment, Natural Resources and Fisheries. Accordingly, the trade union informed the Federal Conciliation and Arbitration Tribunal of its change of name, given that, according to the complainant organization, it could no longer function as a trade union of a service whose name had changed. The complainant organization adds that on 25 January 1995 the Federal Conciliation and Arbitration Tribunal communicated that it refused to take note of the change of name, on the grounds the bill amending the Organic Act of the Federal Public Administration ruled that the Fisheries Secretariat would cease to exist.
3. 219. The complainant organization adds that upon receiving this refusal it sought protection under federal law, alleging violations of Convention No. 87. Subsequently, the judge handed down a sentence refusing amparo (enforcement of constitutional rights) and the protection requested, on the grounds that the Fisheries Secretariat had ceased to exist and that there was no reference to Convention No. 87 in the decision of the Federal Conciliation and Arbitration Tribunal. The complainant organization states that the Federal Conciliation and Arbitration Tribunal, in its capacity as competent authority in the federal judiciary, ruled that the change of name was inadmissible, in spite of the fact that, according to the complainant, other trade unions in departments which had undergone changes such as the one in question had been able to change their name.
4. 220. Furthermore, the complainant organization stresses that the Federal Conciliation and Arbitration Tribunal is made up of various chambers, each one composed of three representatives - one appointed by the Government, another by the Federation of Trade Unions of Public Service Workers (FSTSE) and the third appointed by the Government and the Federation by common agreement. The complainant organization adds that in practice, the decisions issued by this tribunal tend to reinforce the system of trade union monopoly which is a main feature of the country's trade union and labour legislation. It states that this is clearly demonstrated by the fact that on the basis of the decision made by the Federal Conciliation and Arbitration Tribunal, the FSTSE issued notice of the setting up of a new trade union within the new Secretariat without informing the workers. To this end, the FSTSE took upon itself the authority of establishing the rules for the setting up of the new organization, by defining procedures controlled by the Federation itself, with the obvious intention of being able to control from the beginning the operations of the new organization as well as to impose authoritarian methods for the election of officials within the organization - thus enabling it to control its development and influence the appointment of its officials.
5. 221. The complainant organization states that the FSTSE subsequently requested the Federal Conciliation and Arbitration Tribunal to register the new trade union organization - whose creation had been promoted by the FSTSE itself - and that this registration was authorized by the aforementioned Tribunal. The complainant organization points out that no workers from the service concerned were present at the act of constitution of the union, which was attended only by those delegates who, according to the FSTSE, were qualified for that purpose, and the members of the Tribunal itself.
6. 222. The complainant organization states that under the Federal Act pertaining to Public Service Workers there should only be one trade union for each department and that when two competing groups claim trade union representation, the workers must be consulted to ascertain the number of members in each trade union to determine who should represent their union and occupational interests. The complainant organization adds that in this specific case the procedure for registration took place without any consultations being held at all and without taking into account the existence of the complainant organization.
7. 223. The complainant organization states that once the new trade union had been registered it appealed once again to the federal judiciary; however the judge refused the legal protection requested, pointing out that although the trade union's legal registration was not affected, since it was still valid, the department in which it could exercise its legal representation no longer existed; consequently, as the Fisheries Secretariat had ceased to operate, the former trade union was left merely with the status of "trade union without any department".
8. 224. Finally, in its communication of 17 July 1995, the complainant organization alleges that the Federal Conciliation and Arbitration Tribunal annulled the registration of the Single Trade Union of Workers of the Fisheries Secretariat.

B. The Government's reply

1. 225. In its communications of 31 August and 21 September 1995, the Government sent the observations of the Federal Conciliation and Arbitration Tribunal, as well as those of the new National Trade Union of Workers of the Secretariat of the Environment, Natural Resources and Fisheries and the Federation of Trade Unions of Public Service Workers (FSTSE); the Government had previously consulted these organizations and agreed with their comments.
2. 226. The Federal Conciliation and Arbitration Tribunal points out that under the amendments to section 26 of the Organic Act of the Federal Public Administration, the Fisheries Secretariat had ceased to exist on 29 December 1994 and that a new secretariat called the Secretariat of the Environment, Natural Resources and Fisheries had been set up. The Federal Tribunal states that this had been confirmed with the repeal of section 43 of the Organic Act of the Federal Public Administration, which stipulated the functions of the Fisheries Secretariat, and with the additional article 32bis establishing the functions of a new secretariat.
3. 227. Similarly, the Federal Tribunal points out that on 12 January 1995 the Secretary-General of the Single Trade Union of Workers of the Fisheries Secretariat had requested before the Tribunal that its name should be changed to the Single Trade Union of Workers of the Secretariat of the Environment, Natural Resources and Fisheries. However, the full bench of the Federal Tribunal ruled that such a request was inadmissible given that this was not merely a matter of changing the name of the former Fisheries Secretariat but a question of setting up a new state secretariat which would be responsible for various areas previously entrusted to other state secretariats.
4. 228. For its part the National Trade Union of Workers of the Secretariat of the Environment, Natural Resources and Fisheries points out that when the new Secretariat was set up, the workers belonging to it had rejoined - with the majority of the trade union leaders representing them - their original services, but that none of the leaders had retained the same status in the new service. Given these circumstances, the National Trade Union adds that the FSTSE, by virtue of its authority, convened all workers in the new department to set up a new trade union; this took place with the participation of 67 per cent of a total of 26,853 workers, including a considerable number of workers who had belonged to the Single Trade Union of Workers of the Fisheries Secretariat.
5. 229. Furthermore, the Federal Tribunal points out that on 2 and 3 March 1995 the constituent National Congress of the National Trade Union of Workers of the Secretariat of the Environment, Natural Resources and Fisheries was held, convened by the FSTSE. Present at this Congress were 141 delegates, elected in accordance with the law and representing all the workers in the department (approximately 26,000). Subsequently, on 20 March 1995, the full bench of the Federal Tribunal approved the registration of the National Trade Union of Workers of the Secretariat of the Environment, Natural Resources and Fisheries.
6. 230. The Federal Tribunal points out that once the Fisheries Secretariat had ceased to exist with the setting up of the new Secretariat of the Environment, Natural Resources and Fisheries, the Single Trade Union of Workers of the Fisheries Secretariat was automatically dissolved - given that section 73 of the Federal Act pertaining to Public Service Workers stipulates that "once a trade union has been dissolved the registration shall be withdrawn". Furthermore, the Federal Tribunal adds that once the National Trade Union of Workers of the Secretariat of the Environment, Natural Resources and Fisheries had been set up, other trade unions could not - in accordance with section 68 of the Federal Act pertaining to Public Service Workers - exist within the same service.
7. 231. The Federal Tribunal adds that the recently established National Trade Union of Workers of the Secretariat of the Environment, Natural Resources and Fisheries requested that the registration of the Single Trade Union of Workers of the Fisheries Secretariat be withdrawn on the grounds that section 68 of the above-mentioned Federal Act stipulates that "an annulment may be requested by the party concerned ...". In this respect, the Federal Tribunal points out that the recently established Trade Union fulfils the requirements of "party concerned", given that its members include workers who were once employed by the former Fisheries Secretariat and belonged to the Single Trade Union of Workers of the Fisheries Secretariat.
8. 232. Similarly, the Federal Tribunal adds that in view of the fact that the former Single Trade Union of Workers of the Fisheries Secretariat did not comply with the requirements set forth under section 71 of the above-mentioned Federal Act, which stipulates that there must be at least 20 workers to set up a trade union, the annulment provided for under section 82 of the Federal Act is justified.
9. 233. Finally, the Federal Tribunal points out that for the reasons given above, it cancelled the registration of the Single Trade Union of Workers of the Fisheries Secretariat on 22 June 1995. In view of this decision, the party concerned requested amparo (enforcement of constitutional rights) and protection by the federal jurisdiction and the latter upheld the ruling of the Federal Tribunal to cancel the registration of the Single Trade Union of Workers of the Fisheries Secretariat.

C. The Committee's conclusions

1. 234. The Committee notes that this case concerns the annulment of the registration of the complainant organization and the setting up of a new trade union with interference from the Federation of Trade Unions of Public Service Workers (FSTSE).
2. 235. The Committee notes that in accordance with the account given by the Federal Conciliation Tribunal, the Government attributes the cancellation of the registration of the complainant organization to the demise of the Fisheries Secretariat - following amendments to the Federal Public Administration Act - and to the setting up of a new department entitled Secretariat of the Environment, Natural Resources and Fisheries. According to the Federal Tribunal, this automatically resulted in the dissolution of the Single Trade Union of Workers of the Fisheries Secretariat and paved the way for the establishment and registration of the National Trade Union of Workers of the Secretariat of the Environment, Natural Resources and Fisheries.
3. 236. Similarly, the Committee notes that as pointed out by the Federal Tribunal, section 68 of the above-mentioned Federal Act stipulates that another trade union may not exist within the same department; indeed, according to section 73 of this Federal Act: "the registration of a trade union shall be cancelled upon dissolution of this trade union and upon registration of another trade union which represents the majority of workers concerned ...".
4. 237. The Committee notes that according to the Federal Tribunal, the complainant organization was liable to be dissolved in accordance with section 82 of the above-mentioned Federal Act as it failed to comply with the minimum number of 20 workers required by section 71 of the same Act. The Committee does not exclude the possibility that this decline in the number of members was a consequence of the single trade union system established by the Act in question.
5. 238. Indeed, the Committee notes that the major problem lies in the fact that there cannot be more than one trade union within one department, as laid down in sections 68, 71, 72 and 73 of the Federal Act pertaining to Public Service Workers. These provisions have given rise to observations by the Committee of Experts for a number of years.
6. 239. More specifically, the Committee draws the Government's attention to the fact that Article 2 of Convention No. 87, ratified by Mexico, stipulates that workers and employers are entitled to establish and, subject only to the rules of the organization concerned, to join organizations of their own choosing. Furthermore, paragraph 2 of Article 3 stipulates that the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof.
7. 240. Similarly, the Committee draws the Government's attention to the fact that the standards contained in Convention No. 87 apply to all workers "without distinction whatsoever" and are therefore applicable to employees of the State (see Freedom of Association, Digest of decisions and principles of the Freedom of Association, 1985, para. 213).
8. 241. The Committee also points out to the Government that recognizing the possibility of trade union pluralism does not preclude granting certain rights and advantages to the most representative organizations. However, "the determination of the most representative organization must be based on objective, pre-established and precise criteria so as to avoid any possibility of bias or abuse ... (and) the distinction should generally be limited to the recognition of certain preferential rights - for example for such purposes as collective bargaining, consultation by the authorities or the designation of delegates to international organizations" (see General Survey, Freedom of Association and Collective Bargaining, 1994, para. 97).
9. 242. The Committee also notes that the Federation of Trade Unions of Public Service Workers (FSTSE) encouraged the setting up of a new trade union within the new secretariat. In this respect, taking into account that in accordance with section 84 of the Federal Act pertaining to Public Service Workers only one federation of public officials' trade unions may exist, which is specifically named in the legislation as the Federation of Trade Unions of Public Service Workers, the Committee notes that it is impossible for public service workers, to set up trade union organizations of their choice outside the established trade union structure.
10. 243. The Committee therefore requests the Government - as the Committee of Experts has been doing for several years - to take the necessary measures to ensure that both, in law and practice, public service workers can freely establish and join independent trade union organizations of their own choosing and belong to these organizations, irrespective of whether they are grass-roots organizations or federations, outside any existing trade union structure if they so wish. Furthermore, the Committee considers that public service workers should be able to determine the number of workers necessary to form a union in a state agency and the type of union that they wish to form. Finally, in the specific case raised by the complainant, the Committee stresses the need to eliminate as quickly as possible all legal and practical obstacles so that the complainant organization may acquire legal personality and carry out the trade union activities provided for in Convention No. 87. The Committee requests the Government to keep it informed in this respect.

The Committee's recommendations

1. 244. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Recalling to the Government that public service workers are entitled to establish trade union organizations of their own choosing and to join these organizations, subject only to their own rules, and that public authorities should refrain from any intervention which might limit this right (Articles 2 and 3 of Convention No. 87), the Committee requests the Government to take the necessary measures to ensure that both, in law and in practice, public service workers: (1) may freely establish independent trade union organizations of their own choosing and belong to these organizations, irrespective of whether they are grass-roots organizations or federations, outside any existing trade union structure; and (2) may determine the number of workers necessary to form a union in a state agency and the type of union they wish to form.
   • (b) While noting the Government's observations concerning the change of the name and nature of the state secretariat where the complainant organization was and that this organization was dissolved for not having the legal minimum number of workers, the Committee, taking into account the principles mentioned in the first recommendation, stresses the need to eliminate as quickly as possible, all the legal and practical obstacles so that the complainant organization may acquire legal personality and carry out the trade union activities provided in Convention No. 87. The Committee requests the Government to keep it informed in this respect.