Informe definitivo - Informe núm. 349, Marzo 2008

Caso núm. 2541 (México) - Fecha de presentación de la queja:: 31-DIC-06 - Cerrado

Allegations: Irregularities on the part of the authorities in the procedure for electing the worker member of the conciliation and arbitration board of the state of Jalisco with responsibility for the public sector

1. 990. The complaint is contained in a communication from the General Federation of State and Municipal Workers (FGTEM) of December 2006. The Government sent its observations in a communication dated 18 September 2007.
2. 991. 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. 992. In its communication of December 2006, the FGTEM, an organization of unions of workers serving the state of Jalisco, Mexico, as well as its municipalities and decentralized public bodies, alleges that on 5 December 2006 a convention was held for the purpose of electing a worker representative to Local Conciliation and Arbitration Board No. 11, with responsibility for decentralized public bodies and state and municipal workers, further to the corresponding meeting summons issued by the State Governor and Government Secretary-General, calling for the registration of all of the workers’ organizations.
2. 993. The FGTEM adds that, together with 14 trade union organizations of public bodies belonging to the Federation, it attended the convention with a total of 10,900 votes on the registered voting list, following a reduction by the Secretariat of Labour of the number of voters on the union lists. Also attending were 22 trade union organizations belonging to the Federation of Employees serving Jalisco and its Municipalities (FESESEJ), the governmental federation, which receives economic and political support from the State Government and had 6,389 voters registered with the Secretariat of Labour, with no subsequent reduction being made in its lists.
3. 994. The official from the Secretariat of Labour illegally allowed the presence at the convention of a person representing, as a delegate, nine transport unions from the municipality of Puerto Vallarta, without there being any union belonging to any decentralized public body in that locality, with a total of 9,000 votes. According to the FGTEM, the said transport unions from the municipality of Puerto Vallarta should have taken part in Local Board No. 2, which is the one responsible for private transport enterprises. The purpose of its participation was to boost, in an illegal, unlawful and fraudulent manner, the number of votes pertaining to the governmental organization FSESEJ. The government of the state of Jalisco, through the Secretariat of Labour, enabled the participation of these workers, despite the objections made by the representatives of the FGTEM organizations (the documents used to draw up the list of those workers lack an official stamp beside the signature which is assumed to be that of the Secretary of Labour, in addition to which they lack the date of acknowledgment of receipt on both sides as was required of the other organizations).
4. 995. In view of the fact that the objection raised during the convention by the FGTEM representatives was illegally overruled, it was requested that a public notary be brought in to draw up a report of the irregularities occurring during the Board No. 11 convention. However, the public notary was prevented from doing so by the law enforcement officers.

B. The Government’s reply

1. 996. In its communication of 18 September 2007, the Government states that none of the facts that are recounted in the communication presented by the FGTEM establish the alleged failure on the part of the Government of Mexico to abide by the principle of freedom of association and right to organize enshrined in the Convention in question. The FGTEM alleges that, on 5 December 2006, during the course of the state convention held to elect the worker representative to Special Local Conciliation and Arbitration Board No. 11 of the state of Jalisco, with responsibility for workers in decentralized public bodies and their outsourced state and municipal services, the Secretary of Labour and Social Insurance of Jalisco – in his capacity as organizing official – reduced, without any apparent grounds for doing so, the list of registered FGTEM voters, while at the same time registering voters belonging to the FESESEJ, without ascertaining whether they met the legal requirements, and registering the vote of nine trade union organizations not belonging to the decentralized public sector.
2. 997. In this regard, the Government draws attention to the context in which the events referred to by the FGTEM took place and points out that conciliation and arbitration boards are bodies responsible for resolving disputes between capital and labour. Each of them is made up of an equal number of workers’ and employers’ representatives plus one representative of the Government (article 123, section “A”, subsection XX of the Political Constitution of the United Mexican States). There are two types of conciliation and arbitration board. On the one hand, there is the Federal Board of Conciliation and Arbitration, which hears and resolves labour disputes arising between workers and employers, workers and workers or employers and employers, within the context of labour relations in the industrial and enterprise branches as foreseen in article 527 of the Political Constitution of the United Mexican States. On the other hand, there are local conciliation and arbitration boards in each of the 31 federative entities and in the Federal District, with responsibility for hearing and resolving labour disputes not falling within the purview of the Federal Conciliation and Arbitration Board (articles 604 and 621 of the Federal Labour Act). The workers’ representatives and employers’ representatives on the federal and local conciliation and arbitration boards are elected during conventions which are organized and held every six years (article 648 of the Federal Labour Act). The Governor of the state or head of government of the Federal District is empowered, when the needs of labour and capital so require, to establish one or more local conciliation and arbitration boards in a given location and with responsibility for a given territory.
3. 998. The Government states that, in accordance with article 652 of the Federal Labour Act, the workers’ representatives on federal and local conciliation and arbitration boards are elected during conventions by delegates who have been previously designated, in accordance with the following rules:
4. (1) the right to designate delegates to conventions lies with:
   • (a) duly registered workers’ unions; and
   • (b) non-affiliated workers having provided services to an employer for a period of no less than six months during the year preceding the date of the call to the convention, where there are no registered unions;
5. (2) they shall be considered registered members of workers’ unions when:
   • (c) they are providing services to an employer; and
   • (d) they have provided services to an employer for a period of six months during the year preceding the date of the call to the convention;
6. (3) non-affiliated workers as referred to in section 1(b) above shall designate a delegate in each enterprise or establishment; and
7. (4) delegates’ credentials shall be issued by the respective union executive committee or by the one designated by the non-affiliated workers.
8. 999. It will be seen from the foregoing that the FGTEM’s allegations relate to events that supposedly took place during the election of the workers’ representatives to sit on Special Local Conciliation and Arbitration Board No. 11 of the state of Jalisco, which is a tripartite administrative body responsible for seeking a balance among the factors of production through conciliation and the rendering of justice. The Government makes clear that at no time did the FGTEM state that it had been prevented from exercising its right to draw up its constitutions and rules, elect its representatives in full freedom, organize its administration and activities or formulate its programmes. Nor does it mention the manner in which Mexico’s legislation impairs, or is so applied as to impair, the guarantees provided for in the instrument to which reference is made, the provisions in question being Articles 3 and 8 of ILO Convention No. 87, on which the federation bases its communication.
9. 1000. The Government adds that the FGTEM fails to demonstrate that the authorities engaged in acts of anti-union discrimination against the workers belonging to that federation, or that the trade union members belonging to the FGTEM were required to join a specific organization or cease to be members of the one to which they already belonged. Even less so does it argue or prove that the government authorities dismissed public workers belonging to the federation or caused them any harm on account of their membership of or affiliation to a trade union organization, or of having taken part in its normal union activities. Finally, the FGTEM in no way demonstrates that other trade union organizations of public employees in the state of Jalisco are dependent on the public authorities. Consequently, the Government of Mexico has not interfered in the establishment, functioning or internal administration of the FGTEM. If the FGTEM considered itself to have been in any way wronged by the actions of the authority in the elections for the workers’ representative to Special Local Conciliation and Arbitration Board No. 11 of the state of Jalisco, the Mexican legal system allows for recourse to various means of appeal, both administrative and adjudicatory, that are available to it before the competent authorities. From the content of the FGTEM’s communication there is no evidence of its having had such recourse.

C. The Committee’s conclusions

1. 1001. The Committee notes that in the present case the complainant organization alleges irregularities in the process of electing the worker representative to the Local Conciliation and Arbitration Board (a tripartite body for conciliation and the rendering of justice) of the state of Jalisco with responsibility for decentralized public bodies and state and municipal workers. More specifically, the complainant organization alleges that, although having a greater number of voters within the sector, it was prevented from securing a seat on the aforementioned local board when the Secretariat of Labour – taking no account of the objections raised by the representatives of the complainant organization – allowed the participation both of a delegate with close ties to a governmental federation and of nine transport sector organizations which ought to have participated in the elections of a different local board responsible for private transport enterprises; in addition, according to the complainant organization, the documents presented by the private transport workers lacked an official stamp beside the signature which is assumed to be that of the Secretary of Labour, as well as the date of acknowledgment of receipt on both sides (as is stipulated by law and as was required of the other organizations); finally, the law enforcement officials prevented the entry of the public notary whose presence had been called for by the complainant organization in order to take note of the said irregularities.
2. 1002. The Committee notes the Government’s statements that: (1) the allegations do not refer to the Government of Mexico or imply any violation of Convention No. 87 or any harm to public employees by reason of their trade union membership or activities; (2) the workers’ representatives in conciliation and arbitration boards are elected by the delegates designated by the trade unions or non-affiliated workers of an enterprise or establishment; (3) the complainant organization has failed to demonstrate that other (allegedly “governmental”) trade union organizations of public employees in the state of Jalisco are dependent on the public authorities; (4) there is no evidence in the complainant organization’s communication that it has availed itself of the administrative or judicial means of appeal before the competent authorities.
3. 1003. The Committee observes that indeed, as the Government maintains, there is nothing to suggest that representatives of the complainant organization lodged administrative or judicial appeals against the decision by the Secretary of Labour of the state of Jalisco to allow nine transport unions to present themselves for the elections in question and to ignore the formal irregularities in the documentation referred to by the complainant organization.
4. 1004. The Committee regrets that the Government has not provided reports from the Jalisco labour authorities or specific information on the alleged irregularities or on the alleged use of law enforcement officials to prevent a public notary from drawing up a report in that regard, while at the same time also regrets that the complainant organization has failed to present administrative or legal appeals or adequate proof in regard to its representativity and that of other organizations within the sector. The Committee observes, moreover, that it is clear from the minutes of the electoral convention (which the complainant organization attaches) that at least some of the transport unions were from the public transport sector.
5. 1005. In these circumstances, the Committee does not have sufficient information to reach a decision on the alleged irregularities, in view of which, given the period of time that has since elapsed and the fact that the complainant organization decided not to lodge administrative or legal appeals which would have enabled determination of the factual elements necessary to permit a decision on the allegations, it has decided that examination of this case should not be pursued.

The Committee's recommendations

1. 1006. In the light of its foregoing conclusions, the Committee invites the Governing Body to decide that the present case does not call for further examination.