Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 340, Marzo 2006

Caso núm. 2393 (México) - Fecha de presentación de la queja:: 29-JUL-04 - Cerrado

Allegations: The complainant organization alleges: (1) refusal by the authorities to register the organization despite the fact that it has complied with legal requirements; (2) existence of a clause in the collective agreement of the MACOELMEX maquiladora enterprise with another trade union which makes membership of the latter union a condition for hiring workers and requires the company to dismiss workers who renounce membership or who are expelled from that trade union; and (3) dismissal of workers and trade union members during the process of establishing the complainant trade union, threats and intimidation by the company and acts of violence by members of the other existing trade union

1031. The complaint is contained in a communication from the Trade Union of Employees of the Electrical Component Manufacturing Company of Mexico S.A. of C.V. (STEMCEM) dated 29 July 2004. The Government sent its observations in a communication dated 22 September 2005.

1. 1032. Mexico has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), but has not ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 1033. In its communication dated 29 July 2004, the Trade Union of Employees of the Electrical Component Manufacturing Company of Mexico S.A. of C.V. (STEMCEM) states that it is a workers’ organization that represents and defends the rights and interests of its members in the Electrical Component Manufacturing Company of Mexico S.A. of C.V. (MACOELMEX), owned by Alcoa, in Piedras Negras, Coahuila. The trade union was established by the employees of MACOELMEX in a general assembly on 30 April 2002. During the assembly, the articles of incorporation were formally signed, an executive committee was elected, and the rules of procedure were adopted. During the same assembly, 502 MACOELMEX employees joined the trade union and signed a registration application in the presence of the Local Conciliation and Arbitration Board.
2. 1034. The complainant trade union explains that previously, in early 2002, Javier Carmona, Rafael Salinas and other employees of the MACOELMEX plants, owned by Alcoa, in Piedras Negras, Coahuila, Mexico, began to organize with a view to establishing a new MACOELMEX trade union, which would be independent of the existing trade union (Trade Union of Assembly Industry Workers in the State of Coahuila, CTM). The workers wished to establish a trade union that would represent the interests of the majority of workers of the four MACOELMEX plants (plant No. 1, plant No. 2, Subaru plant and Bodega plant), owned by Alcoa in Piedras Negras.
3. 1035. The complainant trade union explains that the collective labour agreement between MACOELMEX and the CTM trade union, dated 3 January 2000, contains an exclusion clause which makes membership of the CTM union a condition for obtaining permanent employment in MACOELMEX. The exclusion clause also requires the company to dismiss employees who are expelled from the CTM trade union. This clause, which is permitted under articles 395 and 413 of the federal Labour Law, provides that “the employer shall dismiss members who renounce membership or are expelled from the contracting trade union”. The complainant states that the Supreme Court of Justice of the Nation has ruled on several occasions that the exclusion clause is unconstitutional; in practice, this is not observed.
4. 1036. In Mexico, so-called protection contracts are common practice in the maquila industry of which MACOELMEX is a part; they are concluded between companies and trade unions, generally before the company hires workers and commences operations. When workers seek to organize a trade union to then be able to assume the administration of their own contract, they are threatened with the exclusion clause which is frequently invoked in practice to have workers dismissed. Application of the exclusion clause infringes the rights of workers to establish and join organizations of their own choosing, and to seek to administer their contract. The combined impact of these restrictions is to deny the right to negotiate a collective agreement collectively.
5. 1037. On 22 February 2002, the employees of the company’s plant No. 2 held a general assembly in the Piedras Negras community centre, during which it was decided that the leadership of Leocadio Hernández, Secretary-General of the CTM trade union, would not be recognized and that steps would be taken to establish a new trade union. Mr. Hernández, accompanied by approximately ten of his supporters, sought to terminate the assembly by force, but the majority opposed him. As they left the meeting, Mr. Hernández and his supporters attacked Ms. Amparo Reyes, an employee of the company’s plant No. 1, who had come to support the workers from plant No. 2. Four women from Mr. Hernández’ group struck and insulted Ms. Amparo Reyes. When the latter tried to evade them, they threw her to the ground, kicked her and pulled her hair. In addition, on Monday, 25 February 2002, supporters of the CTM trade union entered plant No. 2 and attacked several of the workers. One of them, Bruno Meléndez, required stitches to a head wound.
6. 1038. On 26 February 2002, the MACOELMEX company, at the request of the CTM trade union, evoked the exclusion clause to dismiss six employees from plant No. 1 who had helped employees from plant No. 2 to organize the assembly of 22 February 2002. Representatives of the company explained to these workers that they were being dismissed because the collective labour agreement between MACOELMEX and the CTM trade union authorized the union to expel workers and request MACOELMEX to rescind their contracts.
7. 1039. On 4 March 2002, an election was held to renew the sectional trade union committee for plant No. 2. On that occasion, workers could opt to vote for candidates on an independent list or for a list supported by the CTM union. On the morning of the election, the MACOELMEX supervisors threatened workers that MACOELMEX would move to Piedras Negras if they did not vote for the CTM list. The representatives of the CTM trade union and MACOELMEX managers launched a campaign against the independent list and intimidated workers by looking over their shoulder to see how they voted. Despite the threats by the MACOELMEX managers and the CTM trade union, the independent list won by a large majority and the Local Conciliation Board confirmed that employees of plant No. 2 had elected the new sectional trade union committee by a vote of 892 against 592 (in Mexico, each state of the Republic has a Local Conciliation and Arbitration Board to deal with labour disputes that are not subject to federal jurisdiction. The governor of the state oversees the Local Conciliation and Arbitration Board).
8. 1040. On 30 April 2002, a general assembly was held for all trade union members working in plant No. 2 and in the Subaru plant. The purpose of the assembly was formally to establish a trade union that was independent from the CTM and which would genuinely represent the interests of workers. This meeting became the constituent assembly of the MACOELMEX trade union, and the 502 employees who attended the assembly adopted the rules of procedure of the MACOELMEX trade union and elected Carlos Briones, José Luis Rodríguez and Bruno Meléndez to the executive committee.
9. 1041. On 3 and 4 October 2002, MACOELMEX dismissed some 16 MACOELMEX plant No. 1 employees who had expressed an interest in joining the new trade union. In addition, MACOELMEX dismissed Carlos Briones, José Luis Rodríguez, Bruno Meléndez and Guadalupe Rivera, four of the five leaders of the new trade union in plant No. 2.
10. 1042. According to the complainant, in Mexico, workers’ organizations are required to register with the relevant Conciliation and Arbitration Board in order to obtain formal recognition as a trade union. The federal Labour Law, article 366, provides that the Conciliation and Arbitration Board cannot refuse to officially register a trade union if it meets all the requirements laid down in article 365 of that law. The complainant trade union states that it met the requirements: (1) to have at least 20 members; (2) its purpose was to study, improve and defend the interests of workers; and (3) it submitted, together with its application for official registration: (a) an authoritative record of the constituent assembly; (b) an authoritative copy of the records of the election of the executive committee; (c) its rules of procedure; and (d) a list of the total number, names and addresses of its members. The trade union applied for registration by the Local Conciliation and Arbitration Board in Piedras Negras on 27 June 2002. However, the Local Conciliation and Arbitration Board decided, on 23 August 2002, to refuse registration. The Board cited problems in connection with the registration but never sought to consult the trade union to clarify or resolve doubts regarding the registration application and did not give the trade union an opportunity to correct or clarify any such matters. Subsequently, on 2 September 2002, the trade union brought an action for constitutional protection (amparo) before the Third District Court of the Eighth Circuit in respect of the decision of the Local Conciliation and Arbitration Board but, on 22 October 2002, the court refused the trade union’s application for constitutional protection. The trade union then brought an amparo action before the Collegiate District Court in the City of Torreón, Coahuila.
11. 1043. On one occasion, the president of the Local Conciliation Board intervened directly in the process of registering the complainant trade union when he approached the organizers of the trade union at about midnight on 25 September 2002 and warned them not to try and set up an independent trade union. He threatened the workers, saying that it was not appropriate that they should be so open and vocal about their disagreement with the CTM trade union.
12. 1044. Moreover, Mr. José Angel Aranda Hernández, a CTM leader, sat as the worker representative on the Local Conciliation and Arbitration Board which refused to register the complainant trade union. The Local Conciliation and Arbitration Board has a tripartite structure composed of a government representative, an employer representative and a worker representative, but the federal Labour Law, article 707, provides that the members of the Local Conciliation and Arbitration Board cannot intervene in any decision in which they are personally involved.
13. 1045. The complainant trade union is of the view that the facts of this case violate Conventions Nos. 87 and 98, including acts of interference and anti-union discrimination.
14. B. The Government’s reply
15. 1046. In its communication dated 22 September 2005, the Government states that it assumed a commitment to comply with the provisions of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), which was ratified on 1 April 1950, and that it has not ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). The Constitution of the International Labour Organisation imposes upon member States, an obligation to recognize the principle of freedom of association, which is reflected in the Manual on procedure in regard to international labour Conventions and Recommendations. Hence, the Committee on Freedom of Association can only review cases in which the alleged violation of the principle of freedom of association derives from acts by the Government.
16. 1047. Consequently, the following comments address the matters raised in the communication from the complainant trade union relating to acts by the authorities in connection with the principle of freedom of association and protection of the right to organize as embodied in ILO Convention No. 87.
17. 1048. In regard to the statement by the complainant that the competent Local Conciliation and Arbitration Board allegedly violated ILO Convention No. 87, in refusing to carry out registration, the government states that the complaint is not of a nature to constitute non-compliance by the government of the principle of freedom of association and the right to organize embodied in ILO Convention No. 87.
18. 1049. The complainant does not state in its communication that it has been prevented from freely exercising its right to organize, with legal personality and own assets, to defend members’ interests, in a manner deemed appropriate. Neither has it been prevented from exercising its right to draw up its constitution and rules, to elect its representatives in full freedom, to organize its administration and activity and to formulate its programmes.
19. 1050. Likewise, the complainant was not left without recourse, since the Mexican legal system provides the opportunity to exercise rights through the appropriate channels to challenge and pursue legal remedies against the decision of the competent Local Conciliation and Arbitration Board. As the complainant trade union states in its communication, it has been able to take legal action and lodge the challenges it deems appropriate, before the competent jurisdictional and administrative authorities.
20. 1051. In all events, in Mexico, registration of trade unions does not grant them status; it serves to render such organizations public.
21. 1052. The Committee on Freedom of Association has acknowledged that there appears to be no obvious infringement of ILO Convention No. 87 when registration of trade unions is merely a formality subject to conditions which do not jeopardize the guarantees provided for by the Convention.
22. 1053. It may be noted that the complainant trade union may, and has the right to, reapply for registration, which will be granted when the authority declares that it has complied with the corresponding legal requirements, without detriment to its rights to establish itself as a trade union association, draw up its rules of procedure and elect its representatives.
23. 1054. The MACOELMEX trade union is of the view that the Mexican Government has allegedly violated its obligations to the ILO, in authorizing a tripartite structure in the Local Conciliation and Arbitration Board, which allowed a representative of the rival trade union, that is, a member of the CTM, to sit on the Board and that his intervention was decisive in the refusal to register the MACOELMEX trade union.
24. 1055. The federal Labour Law, articles 648 to 667, embodies the electoral procedure to be followed by representatives of workers or employers on Federal or Local Conciliation and Arbitration Boards, together with the requirements to be met in order to be able to act in this capacity. This procedure takes the form of assemblies to be convened either by the Secretary for Labour and Social Security, by the Governor of the State or by the Head of the Federal District Department, during which the representatives of duly registered trade unions or employer organizations, free workers or independent employers elect both worker or employer representatives, in proceedings to be held by each special board. In the light of the above, it is clear that the procedure for electing worker and employer representatives on the Federal and Local Conciliation and Arbitration Boards is transparent and clear, and that it is properly regulated by labour legislation. Any legal impediment in regard to one or more members of the Local Conciliation and Arbitration Board to which the complainant organization applied for trade union registration, under federal Labour Law, article 707, should in due time have been brought to the attention of the authorities specified in federal Labour Law, article 709, as laid down specifically in article 710 of this Law. Therefore, the MACOELMEX trade union was in a position to challenge one or more members of the competent Local Conciliation and Arbitration Board who could thereby have been prevented from participating in the decision in question, and the complainant is solely responsible for not doing so; any failure to take action in this regard cannot be imputed to the Government, nor can it be argued that the tripartite structure of the boards is detrimental to the complainant’s interests since, it is repeated, this composition adheres to provisions of law and is intended to ensure that the collegiate decision of the body is as fair and impartial as possible.
25. 1056. The Government concludes by stating that: (1) the matters raised by the complainant trade union in its communication are not of a nature to constitute non-compliance by the Government of Mexico with the principle of freedom of association and the right to organize embodied in ILO Convention No. 87; (2) the complainant trade union has brought its complaints before the administrative and jurisdictional authorities, it has been heard and has received a response, meaning that the corresponding legal channels and procedures have been used; and, (3) the complainant trade union has been able to exercise its rights before the competent adjudicatory authorities, pursuing the corresponding legal action and, where appropriate, the remedies and challenges provided for in the national juridical system, for the purpose of ensuring that the authorities comply with the obligations incumbent upon them under the relevant laws, as well as those deriving from decisions by the adjudicatory bodies.

C. The Committee’s conclusions

1. 1057. The Committee observes that, in the present case, the complainant (established in the MACOELMEX company) alleges that: (1) the Local Conciliation and Arbitration Board turned down its application for registration, despite the fact that it had complied with the legal requirements and that the trade union had 502 members; (2) a collective labour agreement existed between MACOELMEX and the CTM trade union containing an exclusion clause which makes membership of the CTM union a condition for obtaining permanent employment in MACOELMEX and further requires the company to dismiss any employee who is expelled from the CTM trade union. This clause, which is permitted under articles 395 and 413 of the federal Labour Law, applies to the maquila industry although the Supreme Court of Justice of the Nation has ruled on several occasions that the exclusion clause is unconstitutional; (3) under the exclusion clause contained in the collective agreement, six workers were dismissed during the course of establishing the complainant trade union and acts of violence were directed against workers by members of the CTM trade union, as well as threats and intimidation by company representatives; (4) after the complainant trade union had been established, MACOELMEX dismissed some 16 MACOELMEX employees who had expressed an interest in joining the new trade union. In addition, MACOELMEX dismissed four of the five leaders of the new trade union (Carlos Briones, José Luis Rodríguez, Bruno Meléndez and Guadalupe Rivera); and (5) the complainant trade union’s registration application was turned down by the Local Conciliation and Arbitration Board, which has a tripartite structure consisting of three members, one of whom was a leader of the CTM trade union who failed to recuse himself despite the existing conflict of interest; in addition, several months later, the chairman of the Board attempted to dissuade the organizers of the complainant trade union from establishing an independent union. The Committee notes that these allegations date from 2002 and that the judicial authorities ruled against registration of the complainant trade union on first appeal and that the trade union submitted a further appeal to the Collegiate District Court in the City of Torreón, Coahuila.
2. 1058. In regard to the Local Conciliation and Arbitration Board’s refusal to register the complainant trade union and the alleged lack of impartiality by one of its members and the opposition by the chairman of the Board to the trade union, the Committee notes the Government’s statements that: (1) the Local Conciliation and Arbitration Board’s refusal to register the trade union is not of a nature to constitute non-compliance by the Government of the principle of freedom of association and the right to organize embodied in ILO Convention No. 87; (2) in Mexico, registration of trade unions does not grant them status; it serves to render such organizations public; (3) the complainant trade union may and has the right to renew its application for registration when it complies with the legal requirements; (4) the complainant trade union does not state in its complaint that it has been prevented from freely exercising its right to establishment, or its right to draw up its constitution and rules, to elect its representatives in freedom, to organize its administration and activities and to formulate its programmes; (5) the complainant organization has availed itself of the legal remedies and challenges that exist in the national legal system; (6) the federal Labour Law, articles 648 to 667, lays down the electoral procedure to be followed by representatives of workers or employers on Federal or Local Conciliation and Arbitration Boards, together with the requirements to be met in order to be able to act in this capacity. This procedure takes the form of assemblies to be convened either by the Secretary for Labour and Welfare, by the Governor of the State or by the Head of the Federal District Department, during which the representatives of duly registered trade unions or employer organizations, free workers or independent employers, elect both worker or employer representatives, in proceedings to be held by each special board; (7) the MACOELMEX trade union was in a position to challenge one or more members of the competent Local Conciliation and Arbitration Board who could thereby have been prevented from participating in the decision in question, and the complainant is solely responsible for not having done so; any failure to take action in this regard cannot be imputed to the Government; and (8) the Committee on Freedom of Association can only review cases in which the alleged violation of the principle of freedom of association derives from acts by the Government.
3. 1059. The Committee notes that, on 22 October 2002, the judicial authority rejected an appeal submitted by the complainant trade union but states that it is concerned that a further appeal submitted by the complainant trade union to the District Collegiate Court of Torreón remains pending. The Committee deplores this delay of several years, emphasizing that justice delayed is justice denied and requests the Government to forward a copy of the Court’s decision. The Committee notes that the Local Conciliation and Arbitration Board (competent with respect to registraton) did not consult representatives of the trade union in order to resolve possible legal problems. The Committee further refers to earlier cases involving Mexico in which connection the Committee has requested the Government to take measures to ensure that, if the body responsible for registering organizations concludes that irregularities exist in the documentation submitted, the organizations in question are given the opportunity to rectify the irregularities [see, for example, 334th Report, Case No. 2282, para. 638, and 337th Report, Case No. 2346, para. 1056].
4. 1060. In regard to allegations concerning the (“exclusion”) clause in collective contracts which makes membership of a union a condition for obtaining permanent employment and requires the company to dismiss employees who are expelled from the union, the Committee notes that the Government makes no specific comment on the subject. The Committee further notes that these clauses are permitted under articles 395 and 413 of the federal Labour Law and that, according to the complainant, they are applied to the maquila industry notwithstanding the fact that the Supreme Court of Justice of the Nation has ruled on several occasions that they are unconstitutional. The Committee observes that the provisions in question read as follows:
5. Article 395. The collective contract may provide that the employer will hire only workers who are members of a contracting trade union. This clause and any others that provide for privileges in its favour may not be applied in detriment to workers who do not belong to the trade union and who are already working for the company or establishment prior to the date on which the trade union requests that a collective contract be concluded or reviewed and the exclusion clauses included in it. It may also be provided that the employer will dismiss members who have renounced or been expelled from the contracting trade union.
6. Article 413. The clauses referred to in article 395 may be included in the Contract-Law. It will be applied by the trade union administering the Contract-Law in each company.
7. Under these circumstances, the Committee requests the Government to inform it of the implementation of the ruling of the Supreme Court of Justice concerning articles 395 and 413 of the federal Labour Law.
8. 1061. In regard to the alleged act of anti-union discrimination in connection with the establishment of the complainant trade union (dismissal of six employees from plant No. 1 who had helped employees from plant No. 2 to organize the assembly of 22 February 2002, and the dismissal of four of the five trade union leaders and of 16 workers who had shown an interest in becoming members), the alleged acts of violence by persons connected with the other trade union against workers who decided to take steps to establish the complainant trade union during the assembly of 22 February 2002 and the alleged acts of intimidation by the company and threats that the company would leave Piedras Negras if the workers did not vote for the representatives of the existing trade union, the Committee regrets that the Government has made no specific observations on these allegations and that it has merely stated in general terms that the complainant trade union can exercise its rights through the remedies and challenges provided for in the legal order.
9. 1062. Under these circumstances, the Committee strongly urges the Government to take measures to carry out an investigation into these allegations and in the event that the alleged facts are confirmed, that it ensure that reparation is forthcoming for any anti-union conduct and, specifically, that the dismissed workers are reinstated and, if this is not legally possible, that they are compensated fully without loss of benefits and such compensation shall include penalties that represent sufficiently dissuasive sanctions against the employer for such anti-union conduct. The Committee requests the Government to keep it informed of developments. In general terms, the Committee recalls that no individual shall be prejudiced in his employment by reason of his trade union membership or legitimate trade union activities, whether past or present [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 690], that pursuant to the principle contained in Convention No. 98, article 2, employers shall abstain from any pressure or threat against workers engaging in trade union activities and that the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure and threats of any kind against the leaders and members of these organizations, and it is for governments to ensure that this principle is respected [see Digest, op. cit., para. 47].

The Committee's recommendations

1. 1063. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) In regard to the Local Conciliation and Arbitration Board’s refusal to register the complainant trade union, the Committee observes that on 22 October 2002 the judicial authority rejected an appeal submitted by the complainant trade union and is concerned that a further appeal submitted by the complainant trade union to the District Collegiate Court of Torreón remains pending. The Committee deplores this delay of several years, emphasizing that justice delayed is justice denied and requests the Government to forward a copy of the Court’s decision.
   • (b) The Committee requests the Government to inform it of the implementation of the ruling of the Supreme Court of Justice concerning articles 395 and 413 of the federal Labour Law.
   • (c) The Committee regrets that the Government has not sent specific information on: (1) the alleged act of anti-union discrimination in relation to the establishment of the complainant trade union (dismissal of six employees from plant No. 1 who had helped to organize the assembly of 22 February 2002 and the dismissal of four of the five trade union leaders and of 16 workers who had shown an interest in becoming members); (2) the alleged acts of violence by persons connected with the other trade union against workers who decided to take steps to establish the complainant trade union during the assembly of 22 February 2002; and (3) the alleged acts of intimidation by the company and threats that the company would leave Piedras Negras if the workers did not vote for the representatives of the existing trade union.
   • (d) The Committee strongly urges the Government to take measures to carry out an investigation into these allegations and, in the event that the alleged facts are confirmed, that it ensures that reparation is forthcoming for the anti-union conduct and, specifically, that the dismissed workers are reinstated and, if this is not legally possible, that they are compensated fully without loss of benefits and such compensation shall include penalties that represent sufficiently dissuasive sanctions against the employer for such anti-union conduct. The Committee requests the Government to keep it informed of developments.