Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 342, Junio 2006

Caso núm. 2444 (México) - Fecha de presentación de la queja:: 08-AGO-05 - Cerrado

• la organización querellante alega: 1) que la empresa Editorial Taller S.A. de C.V. fomentó la constitución de una coalición de trabajadores e invocó para impedir la negociación colectiva que ya habían revisado el contrato colectivo de trabajo y que habían llegado a un acuerdo; 2) la violación del derecho de huelga por medio de la intervención irregular del Ministerio Público de la Federación que ingresó a las instalaciones de la empresa (a pesar de que se encontraban cerradas por la huelga) con personal policial o de seguridad fuertemente armado, intimidando a los huelguistas, y 3) la difamación de los dirigentes y afiliados del STICYSEO por parte de las autoridades de la empresa en los medios nacionales e internacionales después de la declaración de la huelga

A. The complainant’s allegations

1. 806. In its communication dated 8 August 2005, the Revolutionary Confederation of Farm Workers (CROC) alleges that on 1 March 2005 the Trade Union of Industrial, Related and Allied Workers of the State of Oaxaca (STICYSEO) called a strike because of the revision of the collective agreement at the enterprise Editorial Taller S.A. de C.V. (it did the same with respect to the enterprise Editorial Voz e Imagen de Oaxaca S.A. de C.V. as it was the same source of work) which was filed with the Local Conciliation and Arbitration Board. Subsequently, the enterprise presented itself with a coalition of workers – according to the complainant the enterprise promoted the establishment of the coalition – arguing that the collective agreement had already been revised and that a consensus had been reached. The complainant organization indicates that the Local Conciliation and Arbitration Board did not recognize the legal personality of the coalition and declared its claims to be inadmissible.
2. 807. The complainant organization adds that as the enterprise violated the collective agreement by revising it with a coalition of workers and failing to recognize the trade union, the STICYSEO presented a statement of claims with a call to strike to the Local Conciliation and Arbitration Board on 21 May 2005. On 17 June 2005, the STICYSEO began a strike at the enterprise and the public notaries of the State of Oaxaca certified that work had been suspended and that there was no one on the premises. Subsequently, a group of persons entered the enterprise surreptitiously and caused an electricity cut. The legal representatives of the enterprise reported and accused before the National Public Prosecutor’s Office, members of the STICYSEO of committing the offences of abducting 31 persons, looting, damage to other people’s property and cutting off electricity; the Prosecutor’s Office began an investigation and on 20 June 2005 it organized an operation involving a large number of armed police during which the strikers were intimidated.
3. 808. The complainant organization states that finally on 18 July 2005, the members of the STICYSEO managed to remove the persons who were inside the enterprise and the legal representatives of the enterprise again reported the members of the trade union to the agent of the Public Prosecutor’s Office for having committed the offences mentioned previously and a new preliminary investigation was initiated. On 22 July 2005, the agent of the Public Prosecutor’s Office, with armed personnel, carried out another operation at the enterprise and intimidated the members of the STICYSEO. The STICYSEO brought an action for constitutional protection (amparo) before the Third District Court against the actions of the Public Prosecutor’s Office and the abovementioned agent of the Prosecutor’s Office said that he could confirm robbery and damage to the building (which according to the complainant organization had been committed by the people who had occupied the building). Lastly, the complainant organization alleges that since the beginning of the strike the management of the enterprise has insulted and slandered the image of the executive committee of the STICYSEO and of its members, accusing them of being criminals before the national and international media.
4. B. The Government’s reply
5. 809. In its communication dated 24 January 2006, the Government states that the Committee on Freedom of Association examines communications on the violation of the principle of freedom of association protected by ILO Convention No. 87 and that it should be pointed out that none of the facts related in the communication presented by the Revolutionary Confederation of Farm Workers (CROC) constitute the alleged non-compliance by the Government of Mexico with the principle of freedom of association and right to organize enshrined in that Convention. At no time has the CROC indicated that the Trade Union of Industrial, Related and Allied Workers of the State of Oaxaca (STICYSEO) has been prevented from freely exercising the right to be constituted, with its own legal personality and assets, for the defence of the interests of its members in the form and terms that they consider appropriate. Neither has it been prevented from exercising its right to draw up its statutes and regulations, freely chose its representatives, organize its administration and activities, and formulate its programme of action. It also does not indicate that the trade union had encountered any obstacles to establishing federations and confederations and affiliating itself with them. For these reasons, the Government of Mexico has at no time failed to comply with the provisions of ILO Convention No. 87. It is brought to the Committee’s attention that the facts related by the CROC refer to aspects concerning the right to collective bargaining set forth in Convention No. 98 and that Mexico has not ratified that instrument. Nevertheless, in order to contribute in good faith to the work of the Committee comments are being sent on the allegations made by the CROC.
6. 810. The Government indicates that the CROC alleges the violation of its rights during the strike action by the representatives of the Attorney-General of the Republic (PGR), who entered the premises of the enterprise Editorial Taller S.A. de C.V. on 20 June 2005, although they were closed because of the strike called by the STICYSEO. The CROC indicates that the representatives of the PGR entered the premises of the enterprise to carry out a visual inspection as part of preliminary investigation PGR/OAX/OAX/IV/118/2005 which was initiated following the trade union’s report that offences including the abduction of 31 persons, looting, damage to other people’s property and the cutting off of electricity had been committed. In that respect, the Government states that the Mexican legal system defines strikes as a temporary suspension of work carried out by a coalition of workers. The strike must be limited to the simple act of the suspension of work (articles 440 and 443 of the Federal Labour Act). According to the Government, it is not clear from the facts related by the CROC that the National Public Prosecutor’s Office prejudiced the strike of the STICYSEO.
7. 811. It should be noted that the Public Prosecutor’s Office only carried out its obligation to proceed ex officio with an investigation of the offences reported to it, as established in article 113 of the Federal Code of Penal Procedures, in the following manner:
8. – on 17 June 2005 at 3 a.m., the Agency of the Public Prosecutor’s Office Incumbent of the Fourth Investigatory Agency of Oaxaca de Juárez received a report that an offence of illegal imprisonment had been committed involving, at 2 a.m. on the same day, a group of approximately 150 persons taking the premises of the newspaper Noticias de Oaxaca (edited by the enterprise Editorial Taller S.A. de C.V.) and not allowing the 30 persons working there at that time to enter or leave the premises. For that reason, the Agency of the Public Prosecutor’s Office initiated preliminary investigation PGR/OAX/OAX/IV/118/2005;
9. – at 8 a.m. on the same day, the Agency of the Public Prosecutor’s Office carried out a ministerial inspection of the premises of the newspaper Noticias de Oaxaca, testifying to a blockade in de Libres and Constitución streets, the central residential area of the city of Oaxaca de Juárez;
10. – the Agency of the Public Prosecutor’s Office received the ministerial declaration from the owner of the newspaper Noticias de Oaxaca, who claimed that between 2 a.m. and 3 a.m. on 17 June, around 200 persons, without any sort of official authorization, arrived at the premises of the newspaper Noticias de Oaxaca, intending to enter the premises, but due to the fact that people were working there it proved impossible, and they decided to abduct the 31 workers who were there at the time;
11. – the Agency of the Public Prosecutor’s Office officially received the legal representative of the newspaper Noticias de Oaxaca, who produced the notarized power of attorney of the sole administrator of Editorial Taller S.A. de C.V., as well as the official documentation consisting of the notification of the strike relating to Editorial Taller S.A. de C.V., which was planned for 11.30 p.m. on 17 June 2005;
12. – the journalists of the newspaper Noticias de Oaxaca said that they were imprisoned for 19 hours, as the premises of the enterprise Editorial Taller S.A. de C.V. were occupied between 2 a.m. on 17 June 2005, and the corresponding strike was planned for 11.30 p.m. on the same day;
13. – on 20 June 2005, three agents from the Public Prosecutor’s Office of the Federation went to the premises of the enterprise Editorial Taller S.A. de C.V. to carry out an extended ministerial inspection, granted as part of preliminary investigation PGR/OAX/OAX/IV/118/2005, together with some people from the Federal Investigation Agency and experts in photography and criminology from that institution. During the extended ministerial inspection existence of the strike was found in the building mentioned, as well as of the presence of members of the state preventive police, but there was no evidence that the right to strike exercised by the workers belonging to the CROC had been violated, as the ministerial inquiries only consisted of testifying to what was observed on site.
14. 812. The Government adds that the calls to strike that the STICYSEO presented to the enterprise Editorial Taller S.A. de C.V. and to the enterprise Editorial Voz e Imagen de Oaxaca S.A. de S.V., both located in the Calle de Libres, Nos. 407 and 411, are before the Local Conciliation and Arbitration Board of the State of Oaxaca.
15. 813. As to the abovementioned intimidation of members of the STICYSEO by representatives of the PGR, who entered the premises of the enterprise Editorial Taller S.A. de C.V. on 22 July 2005 despite them being closed owing to the strike called by the trade union, the Government explains that in compliance with article 113 of the Federal Code of Penal Procedures, on 18 July 2005, the Agency of the Public Prosecutor’s Office Incumbent Investigator of the First Investigatory Committee in Oaxaca de Juárez initiated preliminary investigation PGR/OAX/OAX/I/148/2005 following the report of the owner of the newspaper Noticias de Oaxaca that the offences of looting with violence, robbery, damage to other people’s property and inflicting injuries had been committed, given that on that same day at approximately 8.13 p.m., a group of people burst into the premises of the newspaper Noticias de Oaxaca and removed the workers who were working inside the building. In keeping with the provisions of article 123 of the Federal Code of Penal Procedures, the agent of the Public Prosecutor’s Office, accompanied by experts in surveying, photography and valuation, carried out a visual inspection at the scene and proceeded to secure the building.
16. 814. The Government indicates that during this same investigation, on 19 July 2005 the Agency of the Public Prosecutor’s Office of the Federation fulfilled the formality of ministerial inspection of the premises of the newspaper Noticias de Oaxaca, the purpose of which was not to violate the right to strike of the workers belonging to the CROC who were outside the building. The Public Prosecutor’s Office, as the body responsible for prosecuting offences and the exercise of penal action, ordered that all relevant actions be taken to prove the existence of the alleged offences and to assign probable responsibility for the alleged offences of illegal imprisonment, looting with violence, robbery, damage to other people’s property and inflicting injuries in the establishment located in the Calle de Libres, Nos. 407 and 411. These investigations are under way. According to the Government, it should be recalled that the principle of freedom of association does not protect the exercising of the right to strike being carried out illegally through actions of a criminal nature and that the authority can intervene in order to keep public order, without this signifying a limitation on the right to strike.

C. The Committee’s conclusions

1. 815. The Committee observes that in this case the complainant organization alleges: (1) that the Trade Union of Industrial, Related and Allied Workers of the State of Oaxaca (STICYSEO) promoted the revision of the collective labour agreement and called a strike at the enterprise Editorial Taller S.A. de C.V. (it did the same with respect to the enterprise Editorial Voz e Imagen de Oaxaca S.A. de C.V. as it was the same source of work) which was filed with the Local Conciliation and Arbitration Board and that in view of these circumstances the enterprise Editorial S.A. de C.V. promoted the establishment of a coalition of workers and maintained that they had already revised the agreement in question and reached a consensus; (2) the violation of the right to strike through the illegal intervention of the National Public Prosecutor’s Office which entered the premises of the enterprise (although they were closed owing to the strike) with heavily armed police or security personnel, intimidating the strikers, and (3) the defamation of the leaders and members of the STICYSEO by the authorities of the enterprise in the national and international media following the calling of the strike.
2. 816. The Committee notes the Government’s statements whereby the complainant organization has at no time indicated that it was prevented from exercising the rights established in Convention No. 87 and that the allegations concern aspects relating to Convention No. 98, which Mexico has not ratified. The Committee recalls in this connection that its procedure can be put into motion in respect of States that have ratified only one or neither of Conventions Nos. 87 and 98.
3. 817. As regards the allegation whereby the enterprise Editorial Taller S.A. de C.V. promoted the constitution of a coalition of workers and, to avoid collective bargaining with the trade union organization STICYSEO, maintained that they had already revised the agreement in question and reached consensus, the Committee, while noting that according to the complainant organization the Local Conciliation and Arbitration Board did not recognize the legal personality of the coalition of workers that presented itself to the enterprise Editorial Taller S.A. de C.V. and that it declared its claims to be inadmissible, observes the Government’s statement that the calls to strike are before the Local Conciliation and Arbitration Board of the State of Oaxaca. In these conditions, the Committee requests the Government to take measures to encourage and promote between the enterprises Editorial Taller S.A. de C.V., Editorial Voz e Imagen de Oaxaca S.A. de C.V., the newspaper Noticias de Oaxaca and the STICYSEO, the full development and use of the procedures for voluntary negotiation with the aim of regulating conditions of employment by way of collective agreements. Furthermore, the Committee requests the Government to inform it of any decisions adopted by the Local Conciliation and Arbitration Board of the State of Oaxaca on this matter.
4. 818. With respect to the alleged violation of the right to strike through the illegal intervention of the Public Prosecutor’s Office which entered the premises of the enterprise (although they were closed owing to the strike) with heavily armed police or security personnel, intimidating the strikers and having proceeded to begin investigations, the Committee notes the Government’s statements that: (1) it is not apparent from the allegations that the Public Prosecutor’s Office prejudiced the STICYSEO’s strike; it simply fulfilled its obligation to carry out an investigation into offences of which it is informed as established in the Federal Code of Penal Procedures; (2) on 17 June 2005 the Agency of the Public Prosecutor’s Office was informed that an offence had been committed involving the illegal imprisonment of a group of 30 persons who were working at the newspaper Noticias de Oaxaca, after some 150 persons took the premises and a preliminary investigation (PGR/OAX/OAX/IV/118/2005) was initiated; (3) on 20 June 2005 three agents from the Public Prosecutor’s Office went to the enterprise to carry out an inspection agreed as part of investigation PGR/OAX/OAX/IV/118/2005, together with certain experts in photography and criminology from the Federal Investigation Agency, and testified that there had been a strike; (4) on 18 July 2005, the Public Prosecutor’s Office began another preliminary investigation (PGR/OAX/OAX/I/148/2005) following the report by the owner of the newspaper Noticias de Oaxaca that the offences of looting with violence, robbery, damage to other people’s property and inflicting injuries had been committed, as on that day a group of people broke into the premises and took away the people working there; on 19 July the premises were inspected, which was not for the purpose of violating the right to strike; (5) the Public Prosecutor’s Office, as the body responsible for prosecuting offences and exercising penal action, ordered that all necessary actions be taken to prove the existence of the alleged offences and to assign probable responsibility; the inquiries are under way; and (6) the principle of freedom of association does not protect against the right to strike being exercised illegally through criminal actions and the authority can intervene to maintain public order.
5. 819. The Committee observes that the complainant organization and the Government offer contradictory versions of the facts (specifically acts of violence against the property, imprisonment and injury) that occurred during the strike at the enterprise Editorial Taller S.A. de C.V. (Editorial Voz e Imagen de Oaxaca S.A. de C.V. and newspaper Noticias de Oaxaca). In this respect, the Committee notes that investigations have been initiated by the Public Prosecutor’s Office and that according to the complainant organization the STICYSEO brought an action for constitutional protection (amparo) before the Third District Court against the actions of the Public Prosecutor’s Office. In these circumstances, the Committee requests the Government to inform it of the results of the investigations initiated and of the judicial proceedings to which the complainant organization refers.
6. 820. Regarding the allegation that since the beginning of the strike the management of the enterprise Editorial Taller S.A. de C.V. has insulted and slandered the image of the executive committee of the STICYSEO and of its members, accusing them of being criminals before the national and international media, the Committee observes that the Government has not sent its observations on the matter. In these conditions, the Committee requests the Government to conduct an investigation into this allegation and to inform it of the result.

The Committee's recommendations

1. 821. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to take measures to encourage and promote between the enterprises Editorial Taller S.A. de C.V., Editorial Voz e Imagen de Oaxaca S.A. de C.V., the newspaper Noticias de Oaxaca and the Trade Union of Industrial, Related and Allied Workers of the State of Oaxaca (STICYSEO), the full development and use of the procedures for voluntary negotiation with the aim of regulating conditions of employment by way of collective agreements. Furthermore, the Committee requests the Government to inform it of any decisions adopted by the Local Conciliation and Arbitration Board of the State of Oaxaca on this matter.
   • (b) Observing that the complainant organization and the Government offer contradictory versions of the facts (specifically acts of violence against the property, imprisonment and injury) that occurred during the strike at the enterprise Editorial Taller S.A. de C.V. (Editorial Voz e Imagen de Oaxaca S.A. de C.V. and newspaper Noticias de Oaxaca), the Committee requests the Government to inform it of the results of the investigations initiated and of the judicial proceedings to which the complainant organization refers.
   • (c) Regarding the allegation that since the beginning of the strike the management of the enterprise Editorial Taller S.A. de C.V. has insulted and slandered the image of the executive committee of the STICYSEO and of its members, accusing them of being criminals before the national and international media, the Committee requests the Government to conduct an investigation into this allegation and to inform it of the result.