Informe provisional - Informe núm. 359, Marzo 2011

Caso núm. 2694 (México) - Fecha de presentación de la queja:: 05-FEB-09 - En seguimiento

Allegations: General questioning of the industrial relations system as a consequence

of the extremely widespread use of employer protection collective agreements

1. 727. The complaint in this case was presented against the Government of Mexico and is contained in a communication of the International Metalworkers’ Federation (IMF) dated 5 February 2009. The Government presented its observations in a communication dated 1 March 2010, contesting the admissibility of the complaint, and also providing observations on the substance of the complaint.
2. 728. At its meeting of March 2010, the Committee decided to transfer the Government’s reply to the complainant organization so that it could present its comments on the Government’s arguments against the admissibility of the complaint.
3. 729. In a communication dated 26 April 2010, the complainant organization sent the requested comments. In a communication dated 12 April 2010, the International Trade Union Confederation (ITUC) supported the complaint of the complainant organization. It was also supported by the following Mexican organizations: the Independent Union of Workers of the Metropolitan Autonomous University (SITUAM), the National Steel and Allied Workers Union (STIMAHCA) and the Mexican National Union of Miners, Metal and Allied Workers (SNTMMRSM).
4. 730. At its June 2010 meeting, the Committee considered that the complaint was admissible. In order for it to examine the case in full knowledge of the facts, the Committee requested the complainant organizations to provide concrete and detailed information and, with respect to the legislative aspects referred to, to specify the provisions which violate freedom of association and the manner in which they do so. Subsequently, the IMF sent communications dated 19 May and 7 September 2010.
5. 731. Mexico has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), but not the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Allegations of the complainant organization

1. 732. In its communication dated 5 February 2009, the IMF alleges that, even though the Federal Labour Act establishes apparently straightforward registration requirements (a copy of the minutes of the constituent assembly, a list of workers and employers, a copy of the trade union’s constitution and a copy of the minutes of the meeting held to elect the executive committee) and the reasons for refusal are clearly defined (not having the purpose provided for by law, comprising fewer than 20 members or failing to provide the documents indicated), it is common in Mexico for the law to be interpreted and twisted in such a way as to avoid the registration of trade unions which operate outside the “subordination model”. The obstacles identified include the following:
2. (a) having to prove the existence of an employment relationship (the authorities apply different interpretations concerning the suitable forms of proof, creating plenty of room for manoeuvre, and some authorities request that the list of members be signed by the employee);
3. (b) having to certify the employee’s federal or local authority by means of legal documents which are difficult for workers to access;
4. (c) making observations concerning the documents submitted, if the authority considers that these documents are contradictory or unclear, to the effect that the workers have to hold new meetings which gives the employer or trade union leader concerned time, in the face of possible claims of bargaining rights or the conclusion of a collective labour agreement, to pressurize or dismiss the workers to put an end to their attempt. The observations may relate to the trade union’s constitution, the list of members, meeting minutes or various documents attached;
5. (d) having to expressly show the desire of the workers to belong to the trade union requesting registration by means of inspection, documents or even the physical presence of the workers themselves. This should suffice to imagine the pressure on workers if labour inspectors arrive to interrogate them in front of the employer or trade union leaders with questions concerning bargaining rights under an employer protection collective agreement (CCPP);
6. (e) requiring that the applicants prove the nature of their activities, claiming that some of them occupy positions of trust and cannot therefore form part of the trade union.
7. 733. These requirements inhibit the interest of workers and create considerable fear, in particular because the authorities drag out the process and force applicants to exhaust lengthy proceedings before federal high courts. In practice, very few workers can endure this long and winding path.
8. 734. The toma de nota (taking note) is the authorization given to trade unions to legalize their existence but the procedure for obtaining that authorization is discretionary and depends on the characteristics of the organization, its level of influence (federal or state), the labour authority responsible for its registration, the employer, the dominant trade union confederation or the trade union confederation administering the CCPP for the workplace in which the workers applying for registration are employed, etc.
9. 735. With regard to collective bargaining, the complainant organization alleges that in Mexico the agreements signed are predominantly CCPPs (90 per cent according to a well-known trade union leader), which are based more on practice than on legal standards, or rather on a particular way of interpreting the labour legislation. These collective agreements are concluded in the vast majority of cases behind the backs of workers between a trade union and an employer, and in general their clauses merely reproduce the minimum requirements of the Federal Labour Act without any additional benefits. This is possible because under Mexican legislation, employers whose workers are members of a trade union are required to conclude a collective agreement on the request of the trade union, but are not required to indicate the workers represented or their consent. Once signed, the collective agreement is filed with the conciliation and arbitration board (JCA), a formality which requires only the signature of the union’s general secretary and the formal representation of the employer, that is, proof of its legal personality. The complainant organization emphasizes that once this stage is complete it is not possible to conclude another agreement with another union.
10. 736. Under Mexican legislation employers with workers who are members of a trade union are required to conclude a collective labour agreement with that union on the request of the union. Under section 387 of the Federal Labour Act, if an employer refuses to sign an agreement the workers may exercise their right to strike. There are three ways of obtaining the conclusion of a collective labour agreement and the bargaining rights under that agreement:
11. (a) Compulsory. By means of a strike aimed at achieving the signing of a collective labour agreement. It should be pointed out that no action is taken in response to the request if a collective labour agreement has already been filed and that requirements are imposed which block this route.
12. (b) Voluntary. Concluded by agreement without a strike. The only requirement is that the agreement must be signed by the parties’ representatives without prior approval by the workers concerned and their consent is not necessary.
13. (c) In theory, there is a third possibility by means of full legal proceedings, but there have been no cases to date, since the length of such proceedings means that this is not a viable option.
14. 737. The CCPPs correspond to the voluntary route since the employer selects the trade union of its choice and the authorities do not impose any requirements particularly apart from having to prove the legal personality of both. With regard to the route involving calling a strike, in addition to the fact that the request is automatically rejected if a collective agreement has already previously been filed, the JCAs impose a series of requirements which are difficult to meet and contrary to law, such as providing the names of the workers and their signatures, supplying documents proving the employment relationship and submitting the membership records for the new union. In addition, some boards require proof that the workers have been officially registered as members of the union, the proof being issued by the JCA. At first sight these conditions appear logical to ensure that the request is legitimate. However, in practice, as soon as this information has been supplied, pressure is immediately exerted on the workers trying to conclude a collective agreement through this route by the employer and by the trade union which signed a collective agreement before the strike notice was issued in order to prevent another agreement being concluded and filed. The requirement to supply proof of the workers’ official registration as members of the union is particularly serious because the very body which issues that proof is in fact a JCA. These boards are tripartite bodies composed of representatives of the employer and the dominant union in the area both of whom obviously oppose the issue of such proof or delay the procedure for the necessary time to thwart the attempt at organization. In this regard the dual role played by JCAs as both judge and party is clear and it is for that reason that in practice, they turn into an obstacle to groups of workers who do not belong to the dominant unions wishing to obtain the conclusion of a collective agreement by means of a strike. In the event that no collective agreement has previously been filed, the time taken to deal with the workers’ request can be used to conclude and file another collective agreement with a union which has the same interests as the employer.
15. 738. Sections 387, 388 and 389 of the Federal Labour Act establish the principle of exclusivity and section 389 stipulates that the loss of the majority shall result in the loss of bargaining rights under the collective labour agreement. The procedure for obtaining bargaining rights is subject to sections 892–899 of the Act and should in theory conclude in a ballot which has its own difficulties. If a trade union is claiming bargaining rights under a collective agreement and an agreement has already been filed, the only way for workers to have a union which has the support of the majority is to initiate this procedure. In most states of the Republic, no response is even given on the basis that it would cause a disruption of social peace. To give a semblance of legality to this practice, the labour authorities have themselves encouraged the dominant trade union confederations to conclude agreements in which they agree not to question bargaining rights under collective agreements among themselves. This practice has become so widespread that these agreements have been referred to publicly by the Ministry of Labour and Social Welfare as successes of the “new labour culture”. These so-called “Agreements on Respect and Collaboration” are signed by the general secretaries of various unions and the Minister of Labour and Social Welfare as witnesses. One of the clauses of these agreements provides that “the parties undertake to respect their respective collective agreements”, which involves ignoring the will of the workers and respecting the status conferred on them by employers when they chose them as bargaining agents under the CCPPs.
16. 739. Requests for bargaining rights are hindered by the same obstacles as those created to prevent the signing of collective agreements by means of a strike. The applicants are required to supply names and signatures, provide the minutes of the meeting recording the desire of workers to submit the request and submit proof of the employment relationship. Some JCAs also request proof that workers have been officially registered as members of the union claiming bargaining rights, which is even issued by the labour board itself. This requirement obviously hinders the attempt of workers who wish to change union, for the reasons already outlined. Once their names and signatures have been supplied, the workers tend to be the victim of repressive measures implemented by the employer who regards it as an insult that its workers wish to withdraw from the union that it selected for them.
17. 740. The trade union organization originally imposed by the employer may implement repressive measures against dissident workers, including the exclusion clause. Under section 395 of the Federal Labour Act it is possible to provide in the collective agreement that the employer shall dismiss workers who are expelled from the contracting union. This is the well-known exclusion through dismissal clause. Under the same section, workers may also be excluded through non-admission in that employers may admit as workers only those who are members of the contracting union. This clause has been declared unconstitutional by the Supreme Court of Justice in various rulings although there is no legal precedent and the clause remains in the text of the Act. This clause is yet another way of putting pressure on workers who wish to change union.
18. 741. At a meeting held on 3 December 1997, the Central Committee on the New Labour Culture, established in 1995 and comprising the federal Government and the main trade union and employer leaders, formulated a number of conclusions in which it recognized the seriousness of the issue of bargaining rights, albeit with a biased perspective. Nonetheless, the text is a useful tool for gauging the view of the corporate organizations which make use of the protection agreement model:
19. There are currently a high number of requests for bargaining rights. Many of these requests lack the support of the workers and do not meet the procedural requirements established by law. More than 80 per cent of these requests for bargaining rights are withdrawn, which indicates that, in most cases, they are motivated by individual interests that are detrimental to the stability of collective agreements, industrial peace and a harmonious balance between productive factors. This is shown by the fact that, during proceedings relating to bargaining rights under collective agreements, there has been violence against individuals, particularly during hearings and ballots and, while this violence is sporadic, it infringes the fundamental rights of the defendants, their lawyers and judges. Such violence occurs at both the local and federal levels.
20. 742. The Central Committee recommends “the application of stricter criteria, in accordance with the law, concerning the procedural requirements for accepting requests”. As noted, based on this model of completely restricting collective rights which is applied in Mexico, the trend is to maintain and even strengthen the control mechanisms, given that increasing the requirements imposed on workers who wish to change union, strengthens the employer’s decision to maintain the union of its choice with whom it originally signed the collective agreement. It should be made clear that no procedural requirements whatsoever are imposed by law and that all requirements imposed are contrary to the law. Nonetheless, the authorities and sector leaders reached agreement through this so-called dialogue on the new labour culture to tighten controls. This practice has strengthened the validity of CCPPs, which is clear from the little transparency that is present in the information.
21. 743. Very few requests for bargaining rights result in a ballot and those groups which succeed in organizing a ballot are practically torn apart as a result of pressure. Many workers are forced to abandon the attempt for financial reasons, while others are dismissed. In addition, difficulties are encountered with regard to the ballot itself as these events tend to be surrounded by considerable violence, as acknowledged by the labour authorities themselves. The Chairperson of the Federal Conciliation and Arbitration Board (JFCA) drew the following conclusions in 2000 with regard to proceedings relating to bargaining rights:
22. This practice and its likely purpose is contrasted with the fact that the large majority of proceedings initiated for this reason ended with the complainant union simply withdrawing from the proceedings before the ballot had even been held or with the total abandonment of the proceedings and withdrawal at the ballot, and the fact that proceedings which did reach a conclusion in the form of a decision mostly resulted in the union’s claims not being upheld.
23. 744. The list of factors which create a violent atmosphere at ballots is endless but includes pressure groups designed to prevent workers from accessing the ballot site, usually the company’s own premises, with the clear intention of achieving a majority, that is, 51 per cent of the total members of the union to be able to change trade union, in accordance with the definition established in previous cases by the Supreme Court of Justice. Consequently, any worker who does not attend is mathematically regarded as being in favour of the union currently holding the bargaining rights, which is usually the union chosen by the employer. The factors creating a violent atmosphere also include pressure inside the factory, threats of dismissal and physical attacks on those waiting in voting lines which are organized by the company itself and by the union holding the bargaining rights under the collective labour agreement. In these conditions it is almost impossible to replace the union imposed by the employer. Violence at ballots has been documented by civil society organizations and democratic unions.
24. 745. Under section 401 of the Federal Labour Act, a collective agreement may be terminated for three reasons: by mutual agreement, on completion of the work or as a result of the closure of the enterprise. Taken in isolation this provision would appear logical, but in the context of CCPPs, the possibility of terminating an agreement voluntarily means that this article is used to reduce working conditions by terminating a collective agreement and immediately concluding another agreement with the same or another union, as the company sees fit, with lower wages and benefits and increasingly involving the use of subcontractors.
25. 746. In cases of termination of collective agreements the authorities tend not to impose any requirements particularly and do not require proof of the agreement of workers or additional documentation. Clearly they apply different criteria when it comes to strikes called for the purpose of achieving the conclusion of a collective agreement which are hindered by strict obstacles. This is because a pattern of total complicity is developing and employers have asserted their power through their lawyers who maintain that the freedom to terminate collective agreements voluntarily cannot be restricted.
26. 747. With regard to the right to strike, the complainant organization points out that the term “strike” is defined by section 440 of the Federal Labour Act as the temporary suspension of work by a coalition of workers, while the reasons for calling a strike are regulated by section 450. It is important when interpreting the Mexican labour situation to constantly compare the text of the Act with the practice, given that there is an enormous difference between one and the other. For example, in the case of state employees, the Constitution recognizes their right to strike in article 123(B)(X) and its regulatory act defines the conditions of exercise of that right. However, in the entire history of this bureaucratic labour regime, there has never been a lawful strike and as a result, the concept is practically dead. That is not to say that there is no strike action in this sector. On the contrary, it could be said that it is the most mobilized sector. The problem is that strike action in this sector is unlawful because the legislation is so restrictive that nobody has faith in it. The ILO’s Committee of Experts on the Application of Conventions and Recommendations (CEACR) is aware of the limitations on the exercise of collective rights in this sector and has made very important recommendations on this matter in the past.
27. 748. As indicated, there are two fundamental routes in practice for achieving the conclusion of a collective agreement: by means of a strike and the supposedly voluntary route. Thus, there are two mechanisms for validating the CCPP model: firstly, in accordance with the principle established in section 923 of the Federal Labour Act, no action is taken in response to a written strike notice and accompanying claim that a collective agreement should be signed if an agreement has already been filed and, secondly, obstacles are created to hinder a strike called by a union that is regarded as unacceptable by the employer.
28. 749. Despite ratifying Convention No. 87, which entails an obligation to comply with the provisions of that Convention, Mexico has repeatedly refused to take due note of the observations of the CEACR and the recommendations of the Committee calling for legal reform.
29. 750. The right to organize is fundamentally violated with the protection agreements model by preventing trade union diversity and the registration of new organizations by imposing prior authorization and state discretion for its full exercise, as well as requirements that are almost impossible to meet, in a practice based on open state interventionism. With regard to trade union registration, the granting of legal personality to trade unions is dependent on the toma de nota being obtained. The complainant organization alleges the existence of practices such as the dismissal of workers when they are found to be organizing outside the union imposed on them, threats to workers to leave the union representing them, physical attacks at ballots and all the violence that surrounds trade union registration processes, the signing and termination of collective agreements, bargaining rights under such agreements and strikes, all of which is contrary to the principles of ILO Convention No. 87.
30. 751. It is the State that justifies the system of protection agreements on the basis that they maintain “industrial peace” by strengthening trade union confederations which consequently operate in the context of tripartite bodies. Moreover, those holding political power have openly expressed their support for these agreements and apply the law on a discretionary basis.
31. 752. The factors which render the freedom of association protected under Convention No. 87 ineffective include the lack of an impartial authority that can ensure the rapid, effective and inexpensive settlement of labour disputes. One of the pillars of the protection agreement model is the tripartite JCAs. Given that these boards are composed of parties involved in the cases referred to them for consideration, the role that they play as both judge and party is detrimental to any system of impartial justice. This practice of acting as both judge and party is present in the processes relating to trade union registration, the conclusion and termination of collective agreements and the granting of bargaining rights under collective agreements. In addition to the lack of impartiality, the deliberate delays in dealing with cases combined with the imposition of requirements not sanctioned by law implement the principle of “justice delayed is justice denied”, thereby discouraging the claimants, thwarting their attempts and also limiting their freedom of association contained in Convention No. 87. Furthermore, the right of workers to join the organization of their choice is violated by forcing them to join the dominant trade unions and confederations and applying the exclusion clause to them in the event that they change to a union not chosen by the employer, which also constitutes trade union discrimination.
32. 753. The national labour legislation includes provisions protecting workers which are outside its reach due to the established web of complicity between the labour courts, employers and trade unions, which are the key components of the employer protection agreement model. The trade union involved in this web is chosen by the employer from a number of options taking into account the size of the workplace, the branch of production and the region in which the workplace will be located. The choice is made with the help of legal advice which may be given by a large transnational office or by a single lawyer who refers people to JCAs. The decision is given more legitimacy through the involvement of public authority representatives, such as the governor of the state in which the workplace is to be located or members of the JCA. The advantages offered by the “protection unions” include the economical possibilities of the future employer and control over the workers.
33. 754. It has been fully documented how the slow speed at which the labour courts work and the violence used to repress organization by workers (which is clear in the cases presented against Mexico in which dismissals, threats, criminal complaints and imprisonment of leaders are constant) undermine trade union organization. It would be difficult to imagine a situation of total violation of labour and human rights, without the complicity of the public labour administration system and the administrative function of JCAs which appear formally to represent the sectors in a tripartite context, whereas the concept of collective representation is tainted from the very beginning given that the JCAs are both judge and party and in general lack the impartiality characteristic of any judge.
34. 755. Furthermore, the complainant organization alleges an attempt to strengthen protection agreements, and indicates that the resulting violations of the rights contained in Convention No. 87 become clear in the draft law submitted on 12 December 2002 to the Chamber of Deputies of the Congress of the Union referred to as the “Abascal reform”, after the then Minister of Labour and Social Welfare, Mr Carlos Abascal Carranza. The draft includes amendments to three sections of the Federal Labour Act: 387, 920 and 923, which together establish prerequisites for claiming the conclusion of a collective agreement through a strike, namely the provision of the names of the workers calling the strike, proof of the radius of activity of the union linked to the company’s activity and evidence of registration with the registry of associations (the JCA at the local level and the Ministry of Labour and Social Welfare at the federal level). If these requirements are not met, no action will be taken in response to any request for the conclusion of a collective agreement by means of a strike notice, which leaves only the option of so-called voluntary conclusion whereby the employer selects the union of its choice and future workers will be obliged to join that union if they wish to be employed in that workplace. Since this is not an option for workers, the only option that remains is to apply for the transfer of bargaining rights under the collective agreement.
35. 756. The initiative also puts an end to this possibility, since the reform of sections 893-A and 893-C of the Federal Labour Act envisages similar “procedural” requirements including certification by the registering authority. However, as reiterated throughout the present complaint, local JCAs are tripartite bodies, and the employer and dominant union constitute the majority vote. Obviously, the employer and dominant union would not authorize or support a decision that would result in legal action being taken against themselves. It is clear here how these tribunals play the role of both judge and party. If these requirements – which constitute obstacles – are approved, workers will find it difficult to risk their job and their own safety as well as that of their families by providing their signatures and documents to organizations which seek to call a strike or challenge bargaining rights on their behalf. Even more ridiculous, section 893-C provides that while the issue of the bargaining rights under a collective agreement has not been resolved no other claim on the same grounds will be admitted. This gives a further advantage to the employer, who has prior knowledge that workers wish to change union or leave the union originally imposed by the employer. As a result of this new article, employers merely need to submit a claim against themselves by an illegitimate union to prevent action by the genuine union indefinitely. Anyone with minimal experience in labour matters knows that any trade union action requires a minimum of prior organization, as a result of which the employer or the union holding the bargaining rights requires only minimum information – which is easy to obtain due to the requirement to provide signatures, attach documents and prove certification of the union’s membership to the same representatives of the employer and dominant union – to have enough time to block the possibility of the genuine union submitting a claim indefinitely, given that the termination of the proceedings is dependent on the employer, the union controlled by it and any union recruited for the purposes of submitting a fake claim.
36. 757. The “Abascal Reform” is reproduced in the draft drawn up recently by the Ministry of Labour and Social Welfare, referred to as the “Lozano reform”, as a result of which the risk of protection agreements achieving a semblance of legality is increased. If approved, workers would be obliged to opt only for the illegal route to assert their rights, since with these reforms it would be impossible to have a genuine collective agreement and the safety valve of changing union by challenging bargaining rights would be removed.
37. 758. The reform violates other basic rights and infringes the principles forming the basis of the present complaint. For example, a new section 388 has been added, the last paragraph of which removes the possibility of occupational trade unions obtaining bargaining rights under a collective agreement for their own occupation when the agreement was originally signed by a branch trade union. This section is clearly aimed at the democratic unions in the education and aeronautic sector which occupy a privileged position in alternative trade unionism in Mexico. The effect is clear given that, if the employer selects the union of its choice when signing the original collective agreement and that union is legally registered as a branch trade union, an occupational trade union can never again claim representation of the workers in its occupation. This section was included in the Lozano reform at the request of employers in the aeronautic sector who were afraid that democratic unions would be able to claim bargaining rights in new enterprises in the sector which had signed CCPPs. The intended legal reform would consolidate once and for all the union chosen by the employer and would deny democratic unions traditionally organized by occupation the possibility of including workers governed by CCPPs in their membership (the IMF provides numerous appendices).
38. 759. In its communication dated 19 May 2010, IMF states that the Mexican Government’s reply contains three central arguments. Firstly, it flatly denies the existence of protection agreements, on the basis that the Mexican legal system does not provide for their existence and Mexican legislation recognizes the right to organize. Secondly, it reiterates that the violations on which the complaint is based are not applicable, since the law provides otherwise. In conclusion, the logic of the first two arguments is that it is not possible to show illegal conduct if the law contemplates otherwise. According to that reasoning, it would not be possible to lodge any complaint.
39. 760. The third argument seeks to emphasize the lack of precision in the specific cases, as if the complaint was confined to those cases, when in fact the complaint concerns an industrial model which in its entirety precludes respect for Convention No. 87 with regard to freedom of association. It should be pointed out that the Mexican Government fails to counter the specific charges made in the complaint, preferring vagueness and obscurity in order to try and prevent the proceedings in the case being expedited and decided by the CFA. This extreme vagueness combined with constant legal references is a feature throughout the entire reply, sometimes even going to the extreme of denying any violation of labour rights as if it were easy to draw the wool over the Committee’s eyes, as if there were no other complaints which shed further light on a scenario of comprehensive infringement of trade union rights and as if there were no well-earned notoriety for the old trick of avoiding complying with recommendations, both in practice and in law.
40. 761. With regard to the first argument, the crux of which concerns trade union registration, signature of the collective agreement and bargaining rights, the Government refers to the regulatory framework in law and the procedure for each. On this point, it should be emphasized that by reproducing the law, it seeks to show that it is in compliance with Convention No. 87. Furthermore, the Government indicates that the fact that there are legal mechanisms which may be invoked by workers when they consider that their rights have been infringed is sufficient to consider that the Mexican Government is not in breach of the Federal Labour Act or Convention No. 87.
41. 762. As indicated in the complaint, the substance of the problem is the practical mechanisms which have the effect of preventing the exercise of these rights and which are exemplified in the cases presented in the complaint.
42. 763. With regard to trade union registration (UNTYPP case), it was described how despite its having complied with the legal requirements, further requirements were imposed, thereby unleashing one of the principal mechanisms for limiting the right of freedom of association, manipulating time to wear down and dismiss leaders and members of the organization applying all kinds of pressure and aggression. The extra requirements bordered on the absurd, asking them to prove the existence of their employer, the largest state-owned enterprise, Petróleos Mexicanos. In clear interference in their autonomy, changes to the constitution, classification of the trade union, purging of members were demanded, while members of the executive committee were dismissed with excessive violence and union members resigned when they were refused emergency medical services for their families and themselves. Nine months later, trade union registration was refused.
43. 764. The manipulation of the toma de nota is a mechanism which limits the exercise of the right to organize of Mexican workers and is fully documented in the recommendations issued by the CEACR and the CFA itself in the cases submitted to them. This shows that it is not an isolated case or one limited to a given period of time, but a pattern of conduct of the Mexican Government. This assertion is reinforced by the analyses, presented as evidence in the IMF complaint, which examined the phenomenon and presented case studies of the mechanisms and legal authorities involved. Some of the authors of these studies are consultants with international organizations such as the ILO itself and ECLAC. Furthermore, contradicting itself, the Mexican Government states that a trade union may be freely formed and is not subject to prior authorization, but a trade union which is not registered in accordance with the law (prior authorization) does not have legal existence, and thus, while it there is no toma de nota, it cannot exercise or enjoy the right to organize. Thus there is a flagrant violation of Articles 2, 3(2), 5, 7, 8 and 10 of Convention No. 87.
44. 765. The second question addressed by the Mexican Government in its reply is the signature of the collective agreement. It maintains that trade unions have the right to declare a strike against an employer to request him to sign a collective agreement, thus these agreements are the result of conciliation between the trade union and the employer. In fact the employer, even before starting operations, signs a collective agreement with the most influential trade union federation in the industry or region. That agreement contains the legal minimum requirements and may possibly remain the same ad infinitum. The selected trade union undertakes to control the workers to prevent them demanding higher wages and benefits and anyone who escapes the net or tries to organize another trade union is immediately discovered and may be dismissed. Furthermore, it is impossible to seek to conclude a collective agreement without trade union registration. The evidence provided in the complaint clearly reflects how state governments encourage the signature of agreements with trade union federations before companies are even established (the newspaper El Milenio 06/07/2007, “caso la célula”), in obvious violation of Article 3 of Convention No. 87.
45. 766. Bargaining rights under the collective agreement are closely linked to its signature. When workers do not have the possibility of choosing the trade union which represents them, nor changing their conditions of work, obtaining better wages and benefits, they organize to achieve changes in this respect. This in itself shows the limitations on Mexican workers who wish to organize freely and obtain trade union registration and later request signature of an agreement. This system blocks any possibility of exercising the right to organize, a pattern of behaviour which must be viewed in the round and not in isolation, as the Mexican Government claims in its reply, and which, it is emphasized, is clear from the cases presented to the CFA and the observations of the CEACR.
46. 767. Concerning bargaining rights, the Mexican Government indicates that there is no conflict of interest. The labour authorities responsible for processing registration applications are impartial. It exalts the benefits of tripartism, dressing up its argument on the basis of the case law concerning the form in which a recuento (ballot) must be held. As indicated in the complaint, the JCAs were the subject of observations concerning their lack of impartiality and lack of autonomy by the CEACR, the CFA, the United Nations High Commission for Human Rights and the Special Rapporteur on the Independence of Judges and Lawyers of the United Nations Commission on Human Rights. Merely referring to sections of the Federal Labour Act does not in itself show the impartiality of the JCA, as the Mexican Government claims. It should be clarified that this criticism is not addressed to all tripartite models. In the field of dialogue, it is undoubtedly a valuable institution, as the existence of the ILO itself shows. It is another matter in the case of a purportedly judicial body in which the decision is taken by the Executive Power, whether at federal level through the Secretary of Labour or at local level by the governor, because, in taking that decision, the latter automatically has the support of the representative favoured by its decision. It could not be otherwise, because its financing, appointment and removal depends on the Executive Power, i.e. it lacks the autonomy and impartiality essential in any judicial body.
47. 768. On the subject of bargaining rights, the ballot is only one of the drawbacks. First, it is necessary to surmount the “requirements of receivability”, then ensure that the parties are notified and, when the meeting finally takes place, wait longer because other trade unions are invited by the employer to claim bargaining rights in order to delay the proceedings. They must also resist threats by thugs who come to the meetings and ensure that the workers resist threats and prevent them being dismissed. In this scenario, the ballot is only one of the stages. The cases described in the complaint describe a pattern of behaviour which limits the exercise of the right to organize by nullifying the possibility of workers joining and being represented by a trade union of their choice, thereby violating
48. Articles 2, 3, 5, 7 and 8 of Convention No. 87. It should be emphasized that they must not be analysed in isolation but in the context of the cases presented and indicated to the CFA itself and the recommendations issued by the CEACR. In particular, it is important to consider the evidence produced in this regard, especially document 4, relating to the agreements concluded between trade union federations, employers and Government representatives concerning bargaining rights, where the guiding principle is not to represent workers’ interests through collective bargaining, but to avoid disputes and ensure industrial peace, which is the responsibility of the Secretariat of Labour and Social Security. In this way, the Mexican Government, represented by the secretariat of state, and the employers’ organizations define a trade union policy which has nothing to do with the workers. The fact is that it is the very trade union federations and employers’ organizations which reply to the IMF complaint.
49. 769. As indicated in the complaint, it is important to emphasize the close link between collective bargaining and the right to organize in Mexico. In general, workers join a trade union not because they have freely chosen to join that union, but because they have started work in a company where there is already an active trade union. Whence the enormous importance of the rules which define access to collective bargaining. With regard to signature, it has been pointed out that there are two routes: the first is where the employer chooses its trade union, which accounts for the vast majority of cases; the second is where signature of the collective agreement is secured by means of a strike. Given that workers are members of the trade union chosen by the employer, only by joining that union do workers have access to collective bargaining rights. This process is essential in understanding the model, which is not contested by the Government’s reply, for the simple reason that it is a truth that everyone knows, but which is accepted as a necessary evil. That is because employers are very frightened of real freedom of association and the guarantees set out in Convention No. 87, to such an extent that in the replies provided by the employers’ side, curiously included by the Mexican Government in its reply, the latter in part admits to this process, although it claims that it is justified. It was sought to address these concerns in law through the recent initiative presented on 23 March 2010 to the Chamber of Deputies by the parliamentary party of the National Action Party (Partido Acción Nacional), to which the national Executive belongs, prepared by the Secretariat of Labour and Social Security. Although it is an event which occurred subsequent to the complaint, its content is crucial because it demonstrates how it is sought to enshrine in law the violations which occur in practice but which are denied here. It is sufficient with regard to bargaining rights to look at section 899(A) and (C). Part IV of the former states as a “requirement of receivability”, i.e. as a precondition for considering the intention to change trade union “certification by the competent registering authority that the abovementioned persons are on the trade union list and the date of entry”. To show the vast scope of this provision, it should be recalled that the reference to the registering authority means the Secretariat of Labour and Social Security, at federal level, and the local JCAs at local level, both of which are responsible for issuing that certification or authorization. If we take into account that the JCAs consist mainly of the employers’ representative body and the dominant trade union in the area, jointly the defendant in these proceedings, it is necessary to obtain consent from the person who may be prejudiced by the result of the decision. This already happens in practice and for this reason obstacles are placed in the way of proceedings on bargaining rights. This also explains the slow speed and the acknowledgement by the authorities themselves that over 95 per cent of proceedings do not lead to a decision. Obtaining certification involves an administrative procedure in which the employment relationship, signature, etc. must be proved, and, if they are not accepted by the “registering authority”, these details must be supplied by the employer. In other words, a vicious circle, which is the central theme of the complaint.
50. 770. Section 899(C) is self-explanatory, especially the first paragraph which prevents proceedings to change trade union being instigated if there is another action in progress, in which case it is required to wait one year. In practice, this will mean that when any group of workers organizes to leave the trade union imposed by the employer, the latter engages any trade union to file a claim bargaining rights with the company, which will delay the start of proceedings to change trade union for a long time.
51. 771. As regards the signature of the collective agreement under threat of strike action, section 920(IV)(3) contains similar provisions which block the other possibility of access to bargaining rights. In conclusion, it is sought to close the circle of CCPPs, the existence of which is denied here in the most cynical manner, especially as it affects the vast majority of the industrial system, in the fond belief that a problem of this dimensions can be swept under the carpet.
52. 772. The IMF indicates that the Government denies the existence of CCPPs, stating that they do not exist in the Federal Labour Act. This is true in formal terms, but the complaint is clearly centred on an abusive practice, a system which twists the content of the law to achieve an objective in which the employers’ sector decides and maintains collective agreements to suit itself. Obviously we are not referring to public departments nor mature parastatal unions, but in particular to workplaces where there is no proper trade union, but only a fake mechanism created to prevent the workers organizing freely. This phenomenon is allowed by the Government, to the point where it is seeking to convert it into law, because it considers that this is the best way of attracting investment and supposedly creating jobs. This pattern of complicity is evident in the reply to the complaint viewed as a whole.
53. 773. The existence of these agreements is very well documented, as shown in the analyses produced. In particular, in document 4, paragraph (a), pages 133–134, and paragraph (c), page 213, the representative of the Mexican Government makes express reference to them. The Secretary of State for Labour and Social Security, Mr Javier Lozano, expressly refers to protection agreements in interviews and official documents which are reproduced on the website of that government department. The following are some examples:
54. – The labour reform initiative of 18 March 2010 presented in the Chamber of Deputies on 23 March 2010 by the National Action Party, in its presentation of the reasons, makes specific reference to protection agreements. At the end of paragraph 33 of that presentation, it states in so many words: “Equally, and with the objective of avoiding the conclusion of so-called ‘protection agreements’ in collective industrial relations, it is proposed in section 390 that the aforementioned requirements must be satisfied when collective agreements are filed with JCAs.” This initiative is sponsored by the Mexican Government through the Secretariat of Labour and Social Security (STPS).
55. – On the STPS’s own website, an interview was published on 29 March 2010 with the Secretary of Labour in which he claimed the credit for the bill presented to the Chamber of Deputies by the parliamentary group of the National Action Party (mentioned in the previous paragraph).
56. – In the press section of the STPS website, various official events are reported attended by the Secretary of Labour who, in his speeches, makes express reference to protection agreements, of which the following are a few examples:
57. - 23 January 2008, address by the Secretary in closing the commemorative assembly on Mexican Pilots Emancipation Day, celebrated by the Airline Pilots Association (ASPA). “I share in very large measure the views, comments and ideas just expressed by your general secretary, Mr Dennis Lazarus, and that is why it is so important that if we are all concerned about subcontracting, outsourcing, simulation, puppet unions, protection agreements, if we are so concerned about these things, we must tackle them together, and that is something we can and must do every day. I also congratulate ASPA because it has really found a way of dealing with competition on the sector. The competition is fierce: first the crisis generated by the twin towers in 2001 and then in recent years the opening of low-cost airlines, and, as Dennis said, not always with fair working conditions, because now we are seeing that protection agreements, puppet unions, sometimes simulation, is typical. In this country we cannot allow ourselves the luxury of achieving low costs by trampling on workers’ rights, even if they simulate legal instruments as if they were really in application of a law …”.
58. - 25 March 2010, transcription of the interview with Secretary of State for Labour and Social Security, Mr Javier Lozano Alarcón by the interviewer Carlos Puig of W Radio, who replied as follows to the journalist’s questions “… specifically regarding protection agreements, I am against both puppet trade unions and protection agreements. The antidote is transparency, allowing workers themselves to access collective agreements on the Internet ...”.
59. - 4 August 2009, the Secretary of Labour’s words presiding over the general assembly of the airline pilots’ union. “… Furthermore, I reject the practices whereby some companies try to impose so-called ‘protection’ agreements, which in many cases contain serious infringements of the Federal Labour Act …”.
60. - 1 April 2010, in the transcription of the press conference given by the Secretary of Labour, at Infonacot’s premises, he said with respect to protection agreements “… another thing that is very important: the publication on the Internet of all collective agreements and all trade union registrations. What often happens, and that is why they are protection agreements and puppet unions …”.
61. – The Secretary of Labour also makes reference to protection agreements in official events documented in the websites of various communication media, such as:
62. - In an interview with the Secretary of Labour published in the journal Fortuna, he suggests “… Regulation of outsourcing, promotion of split shifts, tolerance of protection agreements and abolition of social security guarantees in the labour agenda of the Felipe Calderón Government. With an EAP of almost 30 million, the government proposal is to reform the Federal Labour Act to create a ‘productive and competitive environment’ …” says Javier Lozano Alarcón, head of the STPS.
63. - 30 May 2007, in a meeting of the national executive council of CANACINTRA, the Secretary of Labour said “… the Secretariat of Labour and Social Security (STPS) spoke out against puppet unions, protection agreements and said that the exclusion clause in article 128 of the collective agreement should disappear …”, according to its head, Javier Lozano Alarcón.
64. - 5 May 2008, in an interview published in El Universal on the subject of labour reform, referring to the Secretary of Labour, “… furthermore, the head of the STPS considered that the best antidote to protection agreements is transparency and information ...”.
65. – The Secretariat of Labour and Social Security itself, in its National Labour Policy Programme 2001–06, expressly admitted to the existence of CCPPs as a key plank in its policy. Page 2 of the section headed National Labour Policy Programme 2001–06, quoted verbatim, states: “Consistent with these principles, the programme satisfies the statements made during the campaign by Vicente Fox Quezada to various trade union organizations, experts in labour law and other bodies on subjects related to decent work, freedom of association and the right to organize, legitimate collective bargaining and labour justice. These subjects include, among others, inviting the parties involved to engage in dialogue about employer protection agreements.”
66. 774. It is important to emphasize that the complaint is based on concrete evidence, the details of which are not contested, except by meaningless generalities. That is why, to avoid this vagueness, detailed analysis is needed, leading to make recommendations designed to ensure that the labour system in Mexico is compatible with the commitments assumed by the Mexican Government.
67. 775. Finally, the IMF sent a communication dated 7 September 2010 in which it stated that employer protection agreements are not regulated by labour law under that name. The name has been attributed on the basis of what has become common practice in Mexico.
68. 776. It was indicated that the signature of a collective agreement becomes a unilateral act which is decided by the employer which can choose its preferred trade union even before the source of employment exists. It is alleged that it is a legal act in that, under section 387, there is no precondition at all for the signature of a collective agreement between the employer’s representative and the fake trade union, nor is prior consultation of the workers necessary, nor even a minimum number of workers. It is sufficient that two workers from a population of one thousand so request for the formal requirement to be satisfied and the collective agreement signed, and, in accordance with section 396, for its provisions to extend to all persons working in the company or establishment, even if they are not members of the trade union which concluded the agreement.
69. 777. Only two signatures are required to conclude a collective agreement, that of the employer’s representative and that of the general secretary of the trade union, followed by filing with the competent JCA.
70. 778. Once the agreement has been filed with the board, a process of protection commences which prevents other workers from demanding signature of a collective agreement by means of a strike, as set out in section 450(II) of the Federal Labour Act. As observed in article 923, no notice of a strike which demands the signature of a collective agreement may be processed if one has already been filed, because in that case the position would be occupied, thus preventing an authentic trade union from seeking the signature of a collective agreement and, in the event of a refusal, calling a strike to demand its signature.
71. 779. Once the agreement has been signed with the trade union selected by the employer and filed with the Board, the only option left open to the workers is to seek a change of bargaining rights under the collective agreement, as the possibility of signature has been blocked. To obtain these bargaining rights, they have two options: register the trade union in accordance with the requirements of section 365 of the Federal Labour Act or claim bargaining rights by a proceeding which is usually very complicated which requires the majority of the workers.
72. 780. It should be emphasized that although signing a collective agreement does not require proving any number or majority, if the employer refuses to sign and it is necessary to call a strike, in the latter case it is necessary to have the majority set out in article 451(II). In other words, the signature of the collective agreement is in the hands of the employer and this has resulted in leaders of fake trade unions seeking to be chosen or invited by the companies to sign them. Suffice it to look at the website of the Federal District Arbitration and Conciliation Board to confirm the filing of collective agreements with the minimum legal requirements concluded simultaneously in a whole chain of workplaces.
73. 781. In the statements concerning the increase and outlook for protection agreement recorded and transcribed by the Friedrich Ebert Foundation in “Auge y Perspectivas de los Contratos de Protección”, the existence of these agreements is expressly recognized. Even employers’ representatives themselves assert that they are necessary to protect companies from strikes by extortionate trade unions, meaning unions which demand payment of an amount of money in exchange for not calling strikes. The replies of Jorge A. del Regil, from the firm Baker & McKenzie, member of the current CFA, and Tomás Natividad, representative of the Mexican Employers’ Confederation (COPARMEX), are striking. Jorge A. del Regil admits that in his 40 years’ experience he has signed protection agreements with all the trade union federations to protect the companies he represents, and acknowledges that they do not take account of the workers’ wishes “but serve to protect the source of work against strikes by the signature of another union …” and later he also acknowledges that it is necessary to pay the leader for that protection and employer protection agreements are an “ideal industrial relations model, in that, even if there is an economic cost, they ensure the subservience of the workforce to the companies and armours them against uncontrolled actions by trade union organizations”.
74. 782. This interview is particularly interesting because it is linked to a statement by Ramón Gámez Martínez, who through a vast network of trade unions, which includes “Justo Sierra” (and other organizations to which the epithet progressive is applied), holds several thousand collective agreements through his relations with the firm of Baker & McKenzie; and the workplaces controlled by “Justo Sierra”, include fast-food restaurant chains such as McDonald’s and Valle de México University campuses. In that interview, Ramón Gámez acknowledges that 95 per cent of collective agreements in Mexico are signed in this way and in one of the remarks in the interview he says it all: “… all of we trade union federations are doing it. Because it is the mechanism forced on us by law. And, pardon me for saying so, an employer would be daft to do anything else …”. Tomás Natividad, who appears in the Government’s reply to this complaint to the ILO Committee on Freedom of Association, also admits their existence, saying that “… protection agreements are a necessary evil, they are justified, they are needed to ensure the survival of sources of
75. work …”.
76. 783. There are many examples of the widespread existence of CCPPs as a general practice, as well as the statements of the Secretary of Labour himself, well documented in the first document of complaint No. 2694 presented to the CFA. However, the first reply that we received from the Mexican Government denied the existence of protection agreements, on the pretext that they cannot exist because they would not be legal if they did.
77. 784. The IMF also states that the phenomenon of signing CCPPs without considering the wishes and participation of the workers, but as a unilateral act of the employer, is clearly acknowledged and proved in the cases of several trade unions, presented in the IMF complaint and updated at the end of this document. The extension of this fake collective bargaining to all workers means that trade union membership is not a voluntary act separate from collective bargaining, but that workers who are employed by the company or who are recruited in the future, must join the fake trade union which signed the collective agreement. In other words, the workers who belong to the union are forced to do so by virtue of the exclusion clause contemplated in section 395 of the Federal Labour Act.
78. 785. In Mexico, there is no possibility whatsoever of a worker individually to choose one trade union or another. In the case of public employees, the deduction of their trade union dues appears on their payslip and, in consequence, they are considered formally part of the trade union, despite the fact the applicable labour legislation prohibits the exclusion clause (closed-shop). It is simply a common and frequent practice and, therefore, in larger workplaces such as the Secretariat of Public Education, the unionization rate is shown as 100 per cent. Under the general system (identified by article 123(A) of the Constitution), workers become a member of the trade union with bargaining rights under the collective agreement when they take up their employment. No doubt there are exceptions under one system or another, but they are not representative.
79. 786. In particular, sections 2, 3(1) and (2), 4, 7, 8(2), and Article 11, as the key Article of Convention No. 87, are repeatedly violated by the Mexican Government and its representatives in their everyday practice. Mexican workers have no option or chance of influence the initial collective bargaining, thus their membership is determined by the employer, who, by defining the collective bargaining, automatically decides the fake trade union to which the worker must belong.
80. 787. All this forms part of a model which, to ascertain the scale of the restriction of the right to organize, must be seen as a whole, namely: (1) control of trade union registration; and (2) control of the toma de nota of trade union executives.
81. 788. In practice, trade union executives must periodically obtain authorization from the so-called registering authority which is simply a control body (whether at federal level through the Secretariat of Labour and Social Security, or locally, through the tripartite JCA) and in which, absurdly, the authorization to exist legally (registration) or continue (toma de nota of the executive) or change trade union must be decided by the employers’ representation and the trade union leader who has the most collective agreements in the industrial sector, when the employer has already signed the collective agreement
82. 789. For all these reasons, the studies conducted in the National Autonomous University of Mexico by Doctor Alfonso Bouzas Ortíz confirm that over 90 per cent of collective agreements registered in Mexico City are dead or moribund. In other words, they are not revised, not bargained and are maintained at the legal minimum, i.e. they are mere semblances of collective agreements. Obviously, in this environment, all the workers supposedly covered by these collective agreements which they do not know and do not bargain are the victims of a violation of their fundamental right to establish and to join organizations of their own choosing.
83. 790. A frequent argument used by the employers’ side is that the practice of employers’ protection agreements is designed to “protect the company from cases of trade union extortion”. There is some truth in this assertion. There are cases of trade unions which simulate legal acts to obtain economic benefits and do so successfully because of the employer’s fear that holding a ballot or challenging a false strike would force them to disclose the protection agreement which, in many cases, is concealed, i.e. formally filed in the court, but unknown or only partly known to the workers. In this regard, the complaint exposes collective bargaining in the various forms designed to confine freedom of association and collective bargaining into a single package. Both aspects are inseparable, since it would be pointless to have trade union registration without access to bargaining rights. For this reason, too, several democratic sectors have demanded that the Mexican Government should ratify ILO Convention No. 98, which it has resisted, claiming that to do so would infringe national legislation, particularly with reference to the exclusion clause. Although this is a legal provision which is quite rigorously applied in practice, it has been declared unconstitutional on two occasions by the Mexican Supreme Court of Justice.
84. 791. The Mexican model must be analysed taking into account the practical and daily difficulties which prevent workers from exercising the rights associated with freedom of association and collective bargaining. There is no impartial system of arbitration nor mechanisms for certifying the wishes of the workers at the signature stage. The agreement of the majority of the workers is only required in the case of a strike or change of trade union and, ultimately, the delays, setbacks and dragging out of the legal processes act as a fundamental dissuasive and repressive factor. For example, if a trade union is refused registration or toma de nota, the workers’ organization must undertake a very lengthy legal procedure which begins with an application for indirect protection (amparo) before a district judge which allows many possibilities of delay and ends with a review before a federal high court. In a good many of the known cases and thus in the cases described in this complaint, when a favourable judgment is granted, it is up to the registering authority to correct its decision and it can again issue a refusal.
85. 792. In the case of the UNTYPP reported here, for over a year the registering authority kept making new requirements, thereby seeking to frustrate the will of the workers through the dismissal of those workers one by one. The amparo proceeding lasted almost a year (15 January 2009–30 November 2009) and, when protection was finally granted, the end result was the dismissal of those workers who had supported the proceeding, who were forced to sign a document sent to the authority renouncing the trade union, all with the same wording and, adding insult to injury, appointing a company lawyer as their legal representative to request the cancellation of the trade union registration. There is delay throughout the process. Obviously this frustrates the real effectiveness of the right to organize, because without registration and without the toma de nota of the committee, the delay on the procedure for acquiring bargaining rights, and a parallel system of repression, it is practically impossible to complete the legal procedures. A recent example of this can be found in an article published in the newspaper El Universal (26 July 2010 “Los Caminos del SME”), in which the Secretary of Labour, referring to the Mexican Electricians’ Union (SME) dispute which, together with the dispute of the mineworkers’ union (SNTMMSRM affiliated to the IMF) had a huge impact in recent times, states that neither of the executive committees had the toma de nota. Nevertheless, the Secretary of Labour said that he had two months to respond to any request for a toma de nota, i.e. he could leave a trade union without legal representation for that period. Obviously, that assertion carries no legal weight, because it extends the length of time which the law allows for the registration of the trade union, not the toma de nota of the regular elections. In one sentence, he said it all “… without the toma de nota, there would be a permanent conflict within trade unions and their legal representation in civil life would be precarious, if not practically non-existent”.
86. 793. The Mexican Government commonly seeks to conceal national reality and has devoted considerable resources to building a seemingly democratic image abroad. To some extent, it has succeeded, since the employers’ representation composed of people who are well aware of the reality but conceal it, take advantage of the democratic façade created by the supposedly tripartite composition of the control body. Unfortunately, however, as can be seen in many cases, in reality there is evident complicity between the Government, employers’ and workers’ representatives, in closely guarding their shared interests. This framework has been one of the major obstacles to changing the justice system, replacing the existing JCAs with a proper control body which is impartial and genuinely tripartite, and which truly represents the three sectors. The current configuration of the JCAs also influenced the rejection of initiatives such as the Public Register of Trade Unions and Collective Agreements, which was proposed in the sphere of labour reform, in order to have an impartial arbiter which is essential.
87. 794. It is absurd that where there is a practice of signing collective agreements without reference to the workers, leaving as the only way of substantiating a claim for contractual bargaining rights a procedure which must be heard by a tribunal in which decision if taken by the defendants themselves, the ones who caused the anomalous situation, the employers’ side, acting in concert with the government representatives as well as the workers’ representation, often the same trade union federation as the one that the workers are seeking to change. The very reply of the Mexican Government to our complaint is clear evidence of this complicity, as two dominant union federations and the employers’ representative body, COPARMEX, are all contributors to this reply, with the intention of presenting a united front.
88. 795. We provide below, for information, a description of the proceedings and updated details of three of the specific cases of violations of the right to organize illustrated in our complaint.
89. 796. The IMF updates the facts in three of the cases mentioned in their initial complaint of February 2009.
90. 797. With regard to the National Union of Petroleum Technicians and Professionals (UNTYPP), trade union registration, the IMF indicates the following:
91. – 18 March 2008, the UNTYPP was formed in a meeting in which its constitution is approved and the executive committee were elected.
92. – 29 April 2008, the UNTYPP requested registration with the Directorate for Registration of Associations in the Secretariat of Labour and Social Affairs (STPS): in order to comply with the Federal Labour Act, it produced the convocation and minutes of the constituent meeting of the trade union which recorded the will of the workers present to join the trade union and request its registration; membership list showing 260 members, duly authorized constitution, 260 membership forms and documentation showing them to be PEMEX workers.
93. – 6 June 2008, the STPS required the UNTYPP, among other things, to amend its constitution and produce the minutes of the meeting approving the amendments, prove the existence of PEMEX and that the members were employed by that company.
94. – 11 June 2008, Oscar del Cueto Charles, Public Relations Secretary of the UNTYPP, was dismissed for trade union activism.
95. – 21 August 2008, for the second time, the STPS required the UNTYPP, among other things, to amend the constitution and produce the minutes of the meeting when the amendments were made, delete from the membership list those workers who did not produce original documents showing them to be PEMEX employees.
96. – 21 August 2008, Didier Marquina Cárdenas, General Secretary of the UNTYPP was summoned by Mr Marco Antonio Murillo Soberanis, PEMEX deputy human resources director, to the company offices in Mexico City, and pressured to withdraw the request for trade union registration, under threats that he should think of his future and that of his children.
97. – 16 October 2008, for the third time, the STPS required the UNTYPP to prove the wish of each member to belong to the trade union, to amend the constitution and produce the minutes of the meeting when the amendments were made, and to remove more members.
98. – 14 November 2008, PEMEX dismissed 14 members of the executive committee, and over 40 UNTYPP officials and members were violently ejected from their workplace by security personnel of that company and their personal belongings were confiscated.
99. – 18 November 2008, the UNTYPP requested the STPS to grant trade union registration as it had fulfilled all the requirements set out in the Federal Labour Act and over 60 days had elapsed without a decision being made in that regard.
100. – 19 November 2008, the STPS replied to the UNTYPP’s request of 18 November 2008 indicating that the requested registration was not receivable because it had replied making various observations and that the registration was under consideration.
101. – 19 November 2008, the father of Felipe Jaime Valencia Galindo, UNTYPP executive committee member, died because he was refused urgent medical treatment in the PEMEX HOSPITAL, because his son was a member of the UNTYPP.
102. – 20 November 2008, PEMEX summoned several dismissed workers and offered them reinstatement on condition that they renounced the UNTYPP, and several of them, who urgently needed medical treatment, signed a letter of renunciation of the UNTYPP.
103. – 25 November 2008, the UNTYPP requested the STPS to grant trade union registration as it had fulfilled all the requirements set out in the Federal Labour Act and over 60 days had elapsed without a decision being made in that regard and three days had passed since the request in question without any decision in that regard, in accordance with article 366 of the Federal Labour Act.
104. – 27 November 2008, the STPS requested the UNTYPP to clarify whether it was a company or sectoral trade union.
105. – 27 and 28 November 2008, PEMEX embarked on a campaign of threats in the workplaces to force active UNTYPP members to renounce the trade union, failing which they would be sacked.
106. – 27 November 2008, the STPS informed the UNTYPP that it had requested PEMEX to inform it of the functions of the UNTYPP members and to confirm the details provided by them in the membership list.
107. – 1 December 2008, the UNTYPP responded to the observation of the STPS of 27 November 2008 and requested registration in accordance with the provisions of article 366 of the Federal Labour Act.
108. – PEMEX stepped up the violence against UNTYPP members, increased the veiled or direct threats against them personally and against their families, medical services for members were cancelled, blackmailing them by providing medical care only if they renounced the trade union, and enforced retirement.
109. – 23 December 2009, the STPS refused registration of the UNTYPP on the grounds that it did not comply with the requirements of the Federal Labour Act, including that the number of members was less than 20.
110. – In reply to the refusal to register, several members confirmed to the STPS that they belonged to the UNTYPP, showing that there were more than 20.
111. – 12 January 2009, a claim for unfair dismissal of union members and members of the executive committee, on the grounds of their organizing as a trade union, was lodged.
112. – 15 January 2009, the UNTYPP applied for amparo against the refusal to register by the Directorate for Registration of Associations.
113. – 2 July 2009, in reply to the application for amparo filed by the UNTYPP, the district primary judge for labour matters found that the registration was allowable, as the requirements of the Federal Labour Act had been fulfilled and ordered the STPS to register the UNTYPP.
114. – 16 July 2009, the STPS appealed the decision that ordered the registration of the UNTYPP.
115. – 30 November 2009, the 14th Labour Appeal Court found in favour and upheld the judgment that the UNTYPP should be granted registration.
116. – 21 December 2009, the STPS granted trade union registration to the UNTYPP and took note (toma de nota) of the national executive committee for the period 18 March 2008 to 17 March 2012.
117. – 23 December 2009, UNTYPP members and trade union representatives began to receive telephone calls threatening them with dismissal and physical violence if they did not renounce the trade union.
118. – 30 December 2009, the UNTYPP asked PEMEX for a meeting to start formal relations.
119. – January 2010, the UNTYPP launched a membership drive, visiting workplaces throughout the country.
120. – In reply to the UNTYPP’s membership drive, the company, through its security personnel and management, threatened workers who attended UNTYPP meetings with dismissal. Trade union representatives were threatened with physical violence and threats were made against their families, they were spied on and followed by strangers in cars.
121. – January 2010, managers at each workplace summoned UNTYPP members individually to their offices, they were detained by security personnel for a long time, while they were threatened with dismissal if they did not renounce the trade union, they were forced to sign letters which were supposedly personal but all had the same format and appointed the same lawyer to undertake the procedures mentioned in them. The first letter was a renunciation of the trade union and the second, a request to the Secretariat of Labour and Social Security to dissolve the UNTYPP. The JFCA received these documents and opened cases Nos 1/2010 to 55/2010 in Special Board Twelve of the JFCA.
122. – 18 January 2010, approximately 200 workers belonging to the UNTYPP were threatened with dismissal by PEMEX human resources management staff, supported by security personnel, to force them to sign the renunciation of the trade union and request for dissolution of the trade union. Three trade union members and officials were dismissed.
123. – 28 January 2010, Erasto Luis de la Cruz, labour secretary of the executive committee and five members of the sectional executive committee in the Antonio Dovalí Jaime Refinery were threatened with dismissal by the human resources manager and deputy manager of the refinery because they refused to sign letters renouncing the trade union.
124. – 15 February 2010, due to their refusal to sign letters of renunciation of the trade union, Erasto Luis de la Cruz, labour secretary of the executive committee and five members of the sectional executive committee in the Antonio Dovalí Jaime Refinery were dismissed.
125. – March and April 2010, a fierce onslaught was unleashed against our members and advisers, in particular against the general secretary with repeated calls to his mobile phone with threats of violence against himself and his family.
126. – April 2010, trade unions launched a campaign of support for their fellow trade unionists with letters to the Mexican Government to cease the threats and attacks against them and demanding their reinstatement.
127. – May 2010, PEMEX called the members of the executive committee to supposed negotiations, asked them to stop the campaign of letters and offered to reinstate some members.
128. – End of May 2010, the executive committee agreed to stop the campaign in defence of the trade union on condition that the Government and PEMEX ended the repression of members and workers.
129. – June 2010, the repression of members and workers ended. The talks between PEMEX and the trade union continued.
130. – 16 July 2010, Didier Marquina Cárdenas and Francisco Ríos Piñeyro, general secretary and secretary of the organization, respectively, were reinstated, but their jobs were frozen.
131. 798. As regards the case of the Commercial, Office, Retail, Similar and Allied Workers’ Union (STRACC), bargaining rights, the IMF indicates the following facts:
132. – 9 January 2003, the STRACC presented a claim for bargaining rights and requested the Federal District Conciliation and Arbitration Board (JCADF) to keep the details of workers belonging to the STRACC confidential, the said information to be supplied in a sealed envelope.
133. – February 2003, leaders of the movement in the workplace were dismissed, having been identified because the envelope containing their personal data had been broken into.
134. – No hearings are being held, as the JCADF did not notify the defendant trade union and company or they are held at irregular intervals, and other claims for bargaining rights were held, and a ballot was finally called on 20 August 2003.
135. – 20 August 2003, two hours before the ballot, the JCADF suspended it, awaiting a petition lodged by one of the trade unions (the confederation CTC) which also claimed bargaining rights. Thanks to this ruse, the workers belonging to the STRACC were identified.
136. – Having identified the STRACC members, the company dismissed three more officials and intensified threats and violence against the workers.
137. – 10 November 2003, another trade union appeared, also claiming bargaining rights in a hearing to request a ballot date to be set. Groups of thugs turned up and harassed STRACC members to make them drop their claim. The JCADF did not set a date for the ballot and despite the fact that it was witness to the assaults and had the legal means to prevent them, it did nothing.
138. – 8 December 2003, the JCADF allowed the claim for bargaining rights by the trade union which appeared at the hearing on 10 November 2003.
139. – Various hearings were called, and more trade unions presented claims for bargaining rights which were invariably allowed by the JCADF, thus a ballot could be held until the cumulative hearings for each claim had been completed.
140. – The JCA continued to set dates for hearings which were not held due to failure to notify all the claiming unions or deliberate errors in the JCADF agreements.
141. – 18 November 2005 was set by the JCADF for the ballot at the company’s sites, but it could not be held because thugs surrounded the sites and barred the entry of the JCADF official and the STRACC representatives, there were constant threats and aggression and a group of workers was abducted by the company to prevent them voting.
142. – Despite having the legal mechanisms to notify the defendant trade union and the repeated request by the STRACC representatives to use them, the JCA did not do so. The trade unions which also claimed bargaining rights are the CTM, CROM and CTC which have representatives in the JCADF.
143. – 15 January 2009, a hearing was held to hear the STRACC claim and a date was set for the ballot on 22 January 2009.
144. – 22 January 2009, the ballot was held and the JCADF used as the electoral list the one provided by the company without checking it, as required by law, and which contained persons who did not work for the refinery. The ballot takes place amid assaults by thugs without the JCADF taking any action to prevent it. Despite everything, the STRACC won the ballot.
145. – At the end of 2009, the JCA issued a final decision which recognized the STRACC as having bargaining rights under the collective agreement.
146. – In 2010, the parent company refused to reinstate the dismissed workers.
147. 799. As regards the case of Johnson Controls, Puebla, the IMF mentions the following facts:
148. – In the second half of 2005 and throughout most of 2006, working time was unilaterally increased in the dressmaking area to 12 hours per shift, the Christmas bonus and profit-related pay were reduced and replaced by a bonus of lower value.
149. – In the face of the systematic abuse and violation of their rights, the workers organized into a coalition which confronted the protection trade union claiming better conditions of work, participation on collective and wage bargaining and participation in the election of their representatives.
150. – In May 2007, under the Federal Labour Act, the revision of the collective agreement signed by the Commercial, Office, Retail, Similar and Allied Workers’ Union and the employees was due.
151. – On 4 June 2007, the workers’ coalition requested the company trade union to allow them to participate in the wage review, although not the collective agreement, and requested a copy of the collective agreement for information; the trade union replied that they should come to its offices for that purpose.
152. – In June 2007, due to the growing disagreement expressed by the workers’ coalition, the trade union initiated a campaign of harassment against any worker who expressed disagreement, hounding them and keeping production lines and villages under surveillance.
153. – In June 2007, seven members of the workers’ coalition were dismissed in application of the exclusion clause. The workers lodged a complaint of unfair dismissal in the JFCA.
154. – On 26 and 27 October 2007, 150 workers were dismissed without any defence or recourse for a legal settlement for the workers concerned by the protection trade union.
155. – In August 2008, after a process of surveillance of the workers’ coalition by the trade union and the company, 15 leaders were dismissed.
156. – In June 2008, 50 workers were dismissed. The company says that the reason was that they had enrolled in education.
157. – There was systematic direct physical aggression and threats against the workers, leaders and organizers.
158. – The company and the trade union refused to give a copy of the collective agreement to the workers, and those who requested it were dismissed and any attempt to organize detected was eliminated with the dismissal of the leaders.
159. – Johnson Controls contracted workers through various outsourcing firms, each of which had its respective trade union and CCPP.
160. – Due to the slowness and risks involved in requesting trade union registration, the workers’ coalition decided to file a claim for bargaining rights, presentation of which is pending.
161. – In 2010, workers and leaders of Johnson Controls and the coalition were attacked and threatened by men linked to the company trade union.
162. – On 29 May 2010, the coalition and workers of the Johnson Controls (Resurrección Area) Puebla, claimed the right to form their own trade union section and affiliate with a national democratic trade union, and went on strike for three days before negotiating an agreement with the company and the regional authorities.
163. 800. Lastly, the IMF sends a table of the applicable legal provisions.
164. B. The Government’s reply
165. 801. In its communication dated 1 March 2010, the Government states that it took the liberty of consulting with the actors involved to clarify the statements made by the IMF. To that end, provided below are the comments and observations of the federal Government, together with those of the Mexican Workers’ Confederation (CTM), the Revolutionary Confederation of Workers and Peasants (CROC), the Confederation of Chambers of Industry of the United Mexican States (CONCAMIN) and the Employers’ Confederation of the Mexican Republic (COPARMEX).
166. 802. In its initial complaint, the IMF indicates that it has followed with concern the current state of industrial and trade union relations in Mexico, due to the constant claims of workers, trade unions in course of formation, constituted trade unions, non-governmental and human rights organizations alleging difficulties that arise in forming trade unions and formally registering them with the labour authorities, including the system of “taking note”, the practical rules applicable in accessing collective bargaining at its various stages, from inception, signature or conclusion, going on to periodic review and termination, as well as the establishment of mechanisms which hinder the satisfactory implementation of the rights contained in Convention No. 87.
167. 803. In addition, they make allegations, mostly based on imprecise academic studies, of: (i) widespread use of a system of protection agreements which infringes the right to organize; (ii) express recognition of that model by the Mexican State; (iii) corporate control of workers as a fundamental element of the political system; and (iv) use and strengthening of this corporatism, which in practice includes the power of the State to intervene and influence the organization of workers, while the employers’ side uses and is strengthening the protection model to prevent workers organizing and claiming signature of a CCT or improvements in their conditions.
168. 804. The IMF bases its complaint on the following points:
169. (i) The CCPPs are a practice which nullifies the enjoyment and exercise of labour rights.
170. (ii) The critical points of violation of the right to organize allege a pattern of conduct identifiable in the complaints presented to the ILO Committee on Freedom of Association and cases presented at national and international levels in various bodies, related to the principal institutions of collective law: trade union registration; request to conclude a CCT; holding of a CCT; termination of the CCT; and strike.
171. (iii) The constant growth of the phenomenon of CCPP is shown to the extent that there is more information on the content of CCTs and that the vast majority of them do not benefit the workers because the legal minimums are maintained and are only signed and deposited to impose trade unions and CCPP by decision of the employers’ side.
172. (iv) Cases which explain and clarify the restrictions based on the trade union classification, the registration system, rules on signature, agreement holder and termination of CCT, strike, and the trend to increasing control by seeking to give them legal form through reforms of labour legislation.
173. (v) Collective protection agreements and their mechanisms are essentially founded in practice and not law. It would be hard to conceive an all-embracing model of violation of human labour rights without the complicity of the public labour administration and the administrative function of the JCAs.
174. (vi) A comprehensive model which demands explanation by the Mexican Government side in the ILO, as well as the contempt reflected in the failure of the Mexican Government to implement the recommendations of the CFA to comply with Convention No. 87.
175. (vii) The legal limitations on the right to organize begin with the restrictive classification of trade unions set out in section 360 of the LFT which contains a limited list of types of trade union: guilds, company, industrial sector, national industrial sector and various offices; in support of this characterization and linked to the interpretation of powers set out in section 527 of that Act, there are a set of restrictions on the so-called “radius of action” of trade unions in order to limit their scope of representation to branches of activity, entrenched in registration procedures and the so-called “taking note”.
176. The registration requirements are apparently very simple to fulfil under the various articles of section 365 of the LFT. Despite being duly regulated, it is common to distort the interpretation of the law to avoid registering trade unions which act outside the model of subordination characteristic of the system of protection agreements. Among the obstacles identifiable are having to show the existence of the employment relationship, proving the federal or local status of the employer by means of legal documents which are difficult for workers to obtain, difficulties relating to the documentation presented, expressly showing the will of the workers to belong to the trade union which is seeking registration by means of inspections, documents or even the physical presence of the workers themselves, and proving the nature of the activities, alleging that in some cases these are a matter of trust and, in consequence, they cannot belong to the trade union. These requirements discourage workers’ interest and generate considerable fear.
177. (viii) The formation of trade unions which could demand signature of a CCT is avoided.
178. (ix) Once the CCT has been signed, it is deposited with the relevant JCA. This process only requires the signature of the general secretary of the union and the formal representation of the employer. Once this stage has been completed, no other agreement can be signed with another trade union, because of the principle of exclusivity of the agreement holder.
179. (x) The majority of CCT have the legal minimum conditions, which allows the inference that almost all are CCPP, since it makes no sense to conclude and deposit a CCT with these characteristics when its purpose is to improve conditions of work.
180. (xi) The various states of the federation do not have this information available, thus a serious lack of transparency prevails. This becomes an important factor in preventing workers from knowing of the existence of a CCT concluded to govern industrial relations in their workplace. The JCAs impose a set of requirements which are difficult to satisfy, and which are not a legal requirement, such as the names of the workers, their signatures, production of documents which justify the employment relationship and membership lists of the applicant trade union. Particularly serious is the requirement to produce certification of the entries in the union membership roll. This shows the role of judge and party played by the JCAs and the reason why in practice they are an obstacle to groups of workers who do not belong to the hegemonic trade unions seeking to obtain signature of a CCT by notice of a strike.
181. (xii) If a trade union claims the right to conclude a CCT and one has already been deposited, the only way for the workers to have a trade union which reflects the will of the majority is to adopt this procedure. In some states of the Republic, the procedure does not even take place, on the grounds that it causes a breach of social peace. Claims for the bargaining rights are subject to the same obstacles as those which apply to notice of a strike for signature of a CCT. Applicants are required to show names, signatures, minutes of the assembly showing the will of the workers to file the claim and evidence in support of the employment relationship.
182. The trade union originally imposed by the employer may take repressive actions against the dissenting workers, one of them being the exclusion clause. This is just one more of the means of pressure used against workers who seek to change their trade union.
183. Almost all the CCTs deposited nowadays do not contain any improvement beyond the legal minimums, showing clearly that it is a sham which seeks essentially to protect the employer from the entry of another trade union. That is an infringement of the freedom of association contemplated not only in our constitutional framework but also in ILO Convention No. 87. Attempts are being made to ensure that these obstacles acquire the status of law under a bill put forward by the STPS, known as the “Lozano Reform”.
184. A very small percentage of claims for ownership end in a recuento. Those groups which do succeed in participating in the proceeding, in practice disintegrate under the pressure, many of them obliged to give up for economic reasons, others dismissed. Added to this are the difficulties inherent in the recuento itself, which is often surrounded by serious violence, as acknowledged by the labour authorities themselves.
185. (xiii) In the context of the collective protection agreement model, its voluntary character is used, in practice, to worsen conditions of work. This is done by terminating one CCT and immediately concluding another with the same or another trade union as the company sees fit with lower wages and benefits and increasingly with subcontractors.
186. In cases of termination of CCTs, the authorities do not normally impose additional requirements, such as evidence of the workers’ will or additional documentation. Obviously, therefore, they apply a different criterion from the rigidity which impedes the notice of a strike for signature of a CCT. That is because it reinforces a model of total complicity which strengthens the employers’ side, in particular through its lawyers who maintain that this freedom to contract can only be limited in the case of voluntary termination.
187. (xiv) In the case of workers in the service of the State, the Constitution recognizes their right to strike in article 123(B)(X), while its regulating act fixes the terms of that right but, throughout the history of this bureaucratic labour regime, there has never been a legal strike, thus these are practically extinct institutions.
188. (xv) As indicated above, in practice there are two basic ways of achieving signature of a CCT, notice of a strike and the supposedly voluntary route. Thus, there are two mechanisms for applying the CCPP model. On the one hand, there is the principle established in section 923 of the LFT that the notice of a strike in support of a claim to conclude a CCT is not allowed if one has already been deposited. On the other, the creation of obstacles to the convening of a strike by a trade union that is not considered “acceptable to the employer”.
189. The employer collective protection agreement model, therefore, functions on the basis of practices to constrict the workers’ organization from the moment when it is detected, spying on groups and organizations which participate in the process, ranging from veiled threats, direct threats, physical assaults which threaten the life and safety of workers and their families, as well plain dismissal. Against this background, the exercise of the right to organize becomes impossible.
190. 805. The central point of the complaint presented by the IMF concerns the so-called “CCPPs”, defined by the complainant as follows:
191. These are instruments agreed between the general secretary of a trade union without genuine life but registered with the authority and the employer in order to allow the latter to evade bilateral bargaining in the determination of conditions of work.
192. 806. In general terms, our legal system does not provide for so-called “CCPPs”. In this regard, the Mexican Government does not recognize in any way whatsoever the existence of such agreements, since trade unions are free to form themselves, draw up their constitutions, designate their representatives or leaders and regulate their own structure and internal procedure.
193. 807. The Mexican labour authorities are solely concerned to take note of the formation of trade unions, the election of their executive bodies and leaders, the constitutions which govern their activities and internal organization, but at no time do they intervene in those processes, thus the provisions contained in ILO Convention No. 87 on freedom of association are observed.
194. 808. The requirements for registration of a trade union by the labour authority are reviewed by the administrative authority in accordance with the provisions of section 365 of the LFT, which lays down the requirements to be satisfied in order for trade unions to apply for registration.
195. 809. Sections 368 and 374 of the LFT provide that registration of trade unions by the labour authorities has the effect of granting them legal personality in relation to all authorities.
196. 810. This situation does not cause any harm whatsoever to the trade unions, as registration of the trade union does not preclude the right of workers to form a trade union, elect their executive and draw up their constitution, as that right is protected both by article 123(XVI) of the Political Constitution of the United Mexican States, and section 357 of the LFT. Thus from the very moment of their formation, trade unions have the respective rights, a question which has also been recognized by the Supreme Court in the separate opinion which is reproduced below:
197. Ninth session.
198. Body: Plenary.
199. Source: Judicial Weekly of the Federation and Gazette IX, June 1999, page 1.5.
200. Opinion: P.LII/99. Separate opinion. Subject(s): labour.
201. Trade unions. Their registration does not have constituent effects: Trade unions are legal persons which have capacity to defend their rights and exercise the corresponding actions before all authorities, from the moment when they satisfy the requirements for their formation set out in the relevant law and not until they file their registration with the competent authority, because this is not a precondition for their formation, but that, through registration, the corresponding authority certifies that the constituent act satisfies all the requirements of substance required by law, but does not grant the trade union existence or legal personality.
202. Appeal (amparo) 1339/98. Francisco Pacheco García and co-applicants. 11 May 1999; Unanimity of ten votes. Absent: José Vicente Aguinaco Alemán; Speaker: Juan Díaz Romero. Secretary: Armando Cortés Galván.
203. 811. The following are certain arguments that are considered pertinent in justifying and explaining how trade unions are organized and function in Mexico.
204. 812. In Mexico, “trade union” has the meaning set out in section 356 of the LFT, which defines it as follows:
205. Article 356. A trade union is an association of workers or employers formed for the study, improvement and defence of their respective interests.
206. 813. The formation of a trade union requires the agreement of at least 20 workers in active employment according to section 359 of the LFT. However, they may be formed without the need for prior authorization or permission from the authority. Thus the relationship between trade unions and the authorities is simply a matter of registration, i.e. the authorities do not intervene in the formation, operation or internal functioning of trade unions, but solely maintain a register of such organizations.
207. 814. In order to define the competent body for registration, we must distinguish between trade unions with federal jurisdiction and those with local jurisdiction: the former must register with the STPS while the latter must be registered with the JCA of each state of the Republic.
208. 815. The relationship maintained by trade unions with the authorities, after their formation and registration, is like that of any legal person, in accordance with the provisions of sections 368 and 374 of the LFT. As associations to defend their members, they have the function of representing the workers who make up their membership. This legal representation will be exercised by the general secretary or the person designated by its executive body, except as otherwise provided in their constitution, in application of the provisions of sections 375 and 376 of the LFT.
209. 816. The IMF complaint appears to contain the following irregularities:
210. - The IMF annexes to its communication various copies of studies, book chapters, press articles and reviews in an attempt to substantiate its unfounded arguments. In this respect, the CFA is requested not to take these texts into account as evidence of the assertions of the complainant, as they are merely opinions in the form of assertions on some occasions, and academic on others, which must be evaluated as what they are, i.e. the freely expressed opinions of their authors, which, for all that they are based on analysis of facts which may be true, only reflect their personal views, which should not be used in support of the IMF’s complaint, especially because they do not mention facts of specific violations of freedom of association of specific organizations or a given number of workers. They deal with subjective questions on aspects which, although they might relate to specific subjects of study and analysis, cannot serve as a reflection of the entire national reality. Therefore, such texts should not be taken into account as evidence of general facts.
211. - Furthermore, the IMF indicates “the limitations on the right to organize were reflected, among other things, in 46 complaints to the Committee on Freedom of Association (CFA) against the Mexican Government (up to December 2008), in 39 cases between 1990 and 2006, 66 legislative observations of which one was only partially allowed and 26 practical observations”.
212. From this assertion, it appears that the IMF accepts and recognizes that the trade unions in Mexico have a variety of means of legal recourse which they can use if they consider that their rights of freedom of association have been infringed, including, when they have exhausted the relevant recourses in international bodies, complaints in the ILO Committee on Freedom of Association, a body which resolved them by issuing observations to the Mexican Government, which acts in accordance with the law and endeavours to implement such observations to the extent allowed by Mexican legislation. We must, after all, recall that the authorities can only do what the law allows without exceeding their powers or jurisdiction.
213. - In another point of its complaint, the IMF indicates that “the way in which the slowness of labour justice and the violence used to suppress actions to organize the workers operate against trade unions is well documented (as is evident from the cases presented against Mexico in which dismissals, threats, criminal charges and imprisonment of leaders are a constant feature)”.
214. In this respect, it should be pointed out that both workers and trade unions representing them have at their disposal the legal remedies and means provided by our legal system for the purpose of taking the appropriate legal action to put their case and defend their rights.
215. - In cases of unfair dismissal, workers may apply individually or as a group to claim reinstatement or payment of such compensation as may be applicable under the provisions of the Political Constitution of the United Mexican States and the applicable labour laws before the competent administrative authorities or courts. It should be emphasized that the federal Government has established prosecutor’s offices for workers with the primary task of defending labour rights and to:
216. – Guide and advise workers, their unions or beneficiaries on the rights and obligations under labour, pensions and social security laws, as well as the processes, procedures and competent bodies to which they may apply to enforce those rights.
217. – Receive from workers, their unions or beneficiaries, complaints of non-compliance with, and violation of, labour, pensions and social security laws and, if applicable, summon employers or trade unions to appear to testify in accordance with their rights, advising them that, if they fail to appear, they will be fined an amount of up to 100 times the general minimum daily wage applicable in the place and at the time of the non-compliance.
218. – Draw up the relevant complaints before the competent authorities for violation of labour, pensions and social security laws and report to the Attorney-General’s office matters which are presumed to constitute criminal offences.
219. – Propose amicable solutions to the interested parties to settle their disputes, by concluding out-of-court agreements and having them confirmed in authorized acts.
220. – Represent workers, their trade unions and beneficiaries when they so request before the courts, administrative authorities and any other public or private institution, in order to take such actions and recourse as may be appropriate under ordinary and special proceedings, including protection (amparo) until they are totally terminated.
221. As can be seen from the foregoing, the Mexican Government has established administrative bodies which provide guidance and legal advice, not only to workers as individuals, but also to trade unions, assert their labour rights, including before the courts, by delivering the respective judgments which must be enforced while at the same time fostering the settlement of disputes. Thus, in no way can it be argued that the Mexican Government violates the labour laws which the Government itself promotes and supports.
222. - The IMF asserts in its complaint that: “the strengthening of corporatism encouraged the development of the employer protection model, which finds its maximum expression in the collective employer protection agreements ...”. In asserting this, the trade union seeks to persuade the employers to intervene and exercise control of trade unions, presuming that it is they who form them without “real” representation of the workers, in order to sign collective agreements with their representatives which only benefit the employers.
223. This argument is completely mistaken because, as indicated above, current labour legislation sets out the requirements that must be satisfied by any trade union to obtain registration as an association, but its formation is free and not subject to prior authorization by the authorities.
224. Trade unions have the right to convene a strike and notify the employers, with a view to signing a CCT which proposes additional benefits for the workers in return for provision of their services. In this case, the agreements are the result of the conciliation between the workers and employers, but always to the benefit of the general conditions in which the work is performed, from which it can be inferred, once again, that the “employer protection agreements” alleged by the complainant organization do not exist.
225. - The IMF indicates in its complaint that: “… the administrative function of the JCAs, which formally represent the sectors in a tripartite system, without taking into account the forms of representation in collective bargaining, are inherently flawed because the JCAs are judge and party and thus lack the impartiality required by any judge”.
226. In this regard, the complainant organization is quite wrong and unjustified in expressing itself in this way, since the JCAs are bodies created to settle disputes between industry, represented by the employers, and labour, represented by the workers. They have a tripartite composition, with involvement of a representative of the Government who is impartial, whereby it is sought to achieve a strict balance in worker–employer relations.
227. 817. The establishment of the tripartite JFCA is set out in sections 605, 606, 607, 608 and 609 of the LFT, thus its decisions are based in law, fair and seek a balance between the factors of production, without the decision favouring one side in particular, as its decisions are adopted collectively.
228. 818. The Mexican Supreme Court of Justice has established in several opinions that the JCA must order recourse to the recuento or secret ballot of the workers in a dispute over loss of bargaining rights and administration of a CCT.
229. 819. Section 931 of the LFT does not specify the method of voting in the recourse to the recuento procedure. However, based on a systematic analysis of the precept in numerous other articles of the same Act, and taking into account that it is the point in the procedure when the absolute and unrestricted will of the workers in relation to the trade union which must administer the collective agreement can be tested, it is concluded that the confidentiality of the will of the person who expresses his preference must be protected. This is in order to prevent external influences changing his decision and to ensure security in exercising his vote within the democratic system contemplated in the Political Constitution of the United Mexican States, which transcends all orders of social life, including trade unions.
230. 820. Transcribed below is case law opinion No. 150/2008 of the Second Chamber of the Supreme Court of Justice on resolving the contradicting opinions of collegiate courts concerning the procedure of recuento in cases of disputes over rights to the collective agreement (Judicial Weekly of the Federation and its Gazette; opinion No. 150/2008, page 451):
231. Recuento (ballot) to determine the holder of the collective labour agreement set out in article 931 of the Federal Labour Act. Conciliation and Arbitration Boards must order and guarantee that, in deciding, the workers must cast a personal, free, direct and secret vote. In accordance with the fundamental principles set out in the Political Constitution of the United Mexican States, international treaties and secondary laws which, under article 133 of the Constitution, are the supreme law of all the Union, and also the general principles of law and social justice, applicable in the terms of article 17 of the Federal Labour Act, workers have the right to express their opinion and preference to choose freely the organization which represents them, protected against any act of discrimination. Now, in order to fulfil such principles, the labour authority, as director of the proceedings concerning determination of the holder of the collective labour agreement, must order that the test of recuento to which article 931 of the said Act refers, must be conducted according to a procedure which guarantees, in the framework of a democratic system of freedom of association, the personal, free, direct and secret vote of the workers, as it is the point in the proceedings when the absolute and unrestricted will of each of them concerning the trade union which they consider must be the holder and administrator of the collective labour agreement can be tested. Thus it is the duty of the boards, both local and federal, to ensure that the examination satisfies the obligation to ensure the total freedom of those who exercise that right. To that end, it must protect the confidentiality, authenticity and freedom of their will, avoiding external influences which might cause them to change their decision and endanger their security when they cast their vote in a system of democratic life and freedom of association, which is a social guarantee intricately linked with freedom of expression and association, which presumes that each person may decide without any pressure, interference or impersonation in his decision. Consequently, the Conciliation and Arbitration Board responsible for ordering the above examination must, as it sees fit in the light of the characteristics of the specific case: (1) compile a reliable, complete and up to date list of all the workers eligible to vote, considering the provisions of paragraphs II, III and IV of article 931; (2) ensure that the place or places where the recuento is held offer the minimum physical and security conditions for its conduct in a rapid, orderly and peaceful manner; (3) verify that on the day of the recuento, all the documentation and materials necessary and appropriate for the holding of a safe, free and secret ballot are available; (4) ensure that mechanisms to fully identify workers entitled to vote in the ballot are in place as necessary; (5) check that the final count of the votes is conducted in a transparent and public manner by the labour authority conducting the examination, in the presence of duly accredited trade union and employers’ representatives; and (6) if objections are presented, pursuant to paragraph V of article 931, hold, before the recuento and without any delay, the hearing to which that paragraph refers.
232. 821. Thus, the case law cited above establishes the obligation of the JFCA in processing claims for rights to conclude CCTs that all recuentos should be conducted by secret ballot, thereby guaranteeing the free will of the workers and protecting confidentiality in the casting of the vote concerning the trade union which must administer the collective agreement.
233. 822. The JFCA is a tribunal of the executive power, and its tripartism is inherent in its historical roots and reflects a reality which consists of the gravitation of social forces. The tripartite composition of the JFCA is based on article 123(A)(XX) of the Political Constitution of the United Mexican States and section 605 of the LFT. The tripartite organization of the bodies which deliver labour justice has been considered the ideal format for resolving disputes.
234. 823. The legitimacy and strength of the JFCA is largely dependent on tripartism, which has allowed it to consolidate a framework of certainty in labour matters. It has been able to place reason and the law above the pressures inherent in bargaining.
235. 824. As regards CCTs, these are regulated by section 386 of the LFT, which provides as follows:
236. Section 386. A collective labour agreement is an agreement concluded between one or more trade unions and one or more employers, with the object of establishing conditions under which they must perform their work in one or more companies or establishments.
237. 825. Based on the principle of freedom of association and the right to organize, there may exist a plurality of trade unions in one company contracting with certain establishments or type of category.
238. 826. It should be pointed out that, under section 387 of the LFT, an employer who employs workers who belong to a trade union is obliged to conclude with that union, at its request, a CCT. If he refuses, the workers may exercise the right to strike. In this context, it is clear that, under the LFT, the responsibility to request the conclusion of a CCT belongs to the workers through their trade unions and not the employers.
239. 827. The JFCA functioning in special panels has the duty to receive the deposit of collective agreements and internal work regulations under section 616 of the LFT.
240. 828. The JFCA maintains a register and control of CCTs, acts as a depository for them, carries out analysis and supervision to ensure that they comply with the requirements of the LFT, after which it issues the relevant certificate of registration.
241. 829. In 2003, in the framework of the Federal Act on Transparency and Access to Public Government Information, the JFCA began a digitalization programme. The programme involves digitalizing CCTs, agreements on administration of sectoral agreements and internal labour regulations.
242. 830. By December 2008, 16,062 CCTs, agreements on administration of sectoral agreements and internal labour regulations had been digitalized, contained in 20,482 documents containing 1,558,982 images, which are available to those interested on the Internet on the STPS website: http://contratoscolectivos.stps.gob.mx/RegAso/legal_contratos.asp.
243. 831. Collective labour agreements for an indefinite term cover 1,995,000 workers and agreements for the execution and implementation of sectoral agreements cover some 97,000 workers, which contribute significantly to economic stability and help to maintain social peace in Mexico.
244. 832. With the publication of CCTs, any worker has the possibility of knowing and obtaining a copy of it, as well as his duties, the trade union to which he belongs and the name of the general secretary. This has led to a new awareness among workers which will have a favourable impact on the development of individual and collective labour relations and freedom of association.
245. 833. The requirements for giving notice of a strike for the signature of a CCT are set out in sections 920 and 923 of the LFT:
246. Article 920. The strike procedure shall be initiated by the presentation of a set of claims, which must satisfy the following requirements:
247. I. the employer shall be notified in writing: the notice shall contain the claims, notify the intention to strike if they are not satisfied, shall correctly state the purpose of the strike and shall indicate the day and time when work will be suspended or the end of the pre-strike period;
248. II. a duplicate of the notice shall be sent to the Conciliation and Arbitration Board. If the company or establishment are located in a place other than the seat of the Board, the notice may be submitted to the nearest labour authority or the highest level political authority in the place where the company or establishment is located. The authority that issues the summons shall send the notice, within twenty-four hours, to the Conciliation and Arbitration Board and shall inform the president of the Board by cable or telephone;
249. III. the notice of suspension of labour must be given at least six days in advance of the date indicated for suspension of labour and ten days in advance in the case of public services, subject to the legal provisions of this Act. The period shall start to run from the day and time when the employer is notified.
250. Article 923. The notice of convening of a strike shall not be processed when it is not drawn up in accordance with the provisions of article 920 or it is presented by a trade union which is not the holder of the collective labour agreement, or when it is sought to demand the signature of a collective agreement but there is already one deposited with the competent Conciliation and Arbitration Board. The president of the Board, before initiating the processing of any strike notice, must satisfy himself as to the foregoing, order the corresponding certificate and notify the promoter of the decision in writing.
251. 834. The specific cases of agreement holder indicated in the section “Holder of CCT Case” and “Johnson Controls Case” were not processed by the JFCA, but that did not mean failure to comply with the principle of freedom of association.
252. 835. In relation to documentary evidence, paragraph 4(a), in which allusion is made to the JFCA, describes general situations and comments, articles of the LFT and case law opinions which in no way constitute non-compliance with the principle of freedom of association and the right to organize enshrined in ILO Convention No. 87.
253. 836. Similarly, in the section on evidence, alleged examples of CCPPs in the air transport sector are indicated. In this regard, the content of section 387 of the LFT is reiterated.
254. 837. The CTM has indicated that the right of association in labour matters in Mexico is regulated by articles 9(1) and (4) and 123(1)(XVI) of the Constitution, ILO Convention No. 87 signed by Mexico and the LFT, Title Seven on collective labour relations. It is thus pointless to demand legislation concerning the matter under discussion, as there is already an ample legal framework.
255. 838. As regards the complaint presented by the IMF, at no time does it indicate specific violations of the right to organize, but only mentions institutions of collective law such as trade union registration, request to sign the CCT, termination of the CCT and strike, thus there is no basis for dispute.
256. 839. The federal State, acting in the exercise of its powers, could not nor can differentiate between the CCTs concluded before it, except in accordance with the provisions of the LFT. The types of agreements for employment relations with employers contained in the law are: (1) CCT; (2) sectoral agreement; and (3) individual contract.
257. 840. The CCT is the agreement concluded between one or more trade unions and one or more employers with the object of establishing the conditions under which they must perform their work in one or more companies or establishments.
258. 841. The sectoral agreement is the agreement concluded between one or more trade unions and one or more employers with the object of establishing the conditions under which they must perform their work in a given branch of industry, which is declared mandatory in one or more federal entities, one or more economic zones which cover one or more of these entities or the entire national territory.
259. 842. The individual contract is defined by the LFT as the act whereby a person undertakes to provide personal labour to another in a subordinate capacity, for payment of a wage, subject to previously established worker–employer relations.
260. 843. Thus, for the Mexican authorities, it is impossible to differentiate or classify CCPPs as collective agreements, sectoral agreements and individual contracts and their respective legal nature are the same.
261. 844. As regards the assertion that “the vast majority of them do not benefit the workers because the legal minimums are maintained and are only signed and deposited to impose trade unions”, the authority analyses the legality and formality of the CCTs concluded before them, which must comply with certain formal requirements.
262. 845. The mechanisms for concluding a CCT are fully identified and established in chapter three of the LFT, on the CCT, which is covered in sections 386–403. Any practice outside the law is ruled out, as is recognized by students of Mexican and international labour law. In this regard, it is worth recalling the basic and fundamental tripartism that pertains in the provisions of labour law, taking account of the employers, workers and the Government. Thus, as this is a basic principle of labour justice, it is unacceptable for the IMF to assert that the JCAs, whether local or federal, are judge and party, as they act as arbitrators and/or conciliators to resolve industrial disputes.
263. 846. The Mexican authorities have never failed to follow the recommendations of the Committee on Freedom of Association of the Governing Body of the International Labour Organization. As its name implies, they are recommendations that the Mexican Government has taken into consideration and implemented, thus fully complying with the provisions of Convention No. 87. In other words, the Mexican Government has never infringed the right of association of any Mexican worker.
264. 847. In Mexico, there is no limitation on the right to organize. It is important to point out that, in Mexico, there is no violation of the right to freedom of association or to meet peacefully for any lawful purpose including the right to organize.
265. 848. Thanks to the freedom granted under the Political Constitution of the United Mexican States, articles 5 and 123, and Mexico’s obligations assumed when it signed ILO Convention No. 87, the Mexican Government is obliged to uphold those rights. Consequently, it has regulated these associative activities, and is thus able to give trade unions a life in law, a fact which is clearly established in section 25(IV) of the Mexican Federal Civil Code, endowing them with legal personality, with all the rights and obligations inherent therein, a fact which shows the Government’s interest in upholding freedom of association.
266. 849. Section 360 of the LFT, far from being restrictive as the IMF indicates, is a legal framework which can provide a group of workers who are associated for the purpose of achieving better conditions of work with a specific status and legal personality for their movement.
267. 850. In order to be able to classify the trade union, it is necessary to know whether it is formed by workers with the same occupation, office or specialism; workers employed in the same company; workers employed in two or more companies in the same industrial sector; workers employed in one or more companies in the same industrial sector located in two or more federal entities; workers employed in various occupations. These trade unions may only be formed when, in the municipality concerned, the number of workers in the same occupation is less than 20. The LFT clearly sets out the requirements that must be satisfied for the formation of a trade union but, as they all have their own specific characteristics, it is necessary to group them and establish their nature. That is why the LFT groups them as guild, company, sectoral, national sectoral, various offices.
268. 851. The requirements set out in the LFT are necessary to assist the labour authorities in deciding on the substance of the matter, as well as accrediting the legal status of the party to a claim to bargaining rights in order to exercise those rights.
269. 852. The Revolutionary Confederation of Workers and Peasants (CROC) has expressed its disagreement with the complaint presented by the IMF in the ILO. At the meeting of the regional conference of Central America, Mexico and the Dominican Republic of this Confederation held on 15 and 16 April 2009 in Buenos Aires, Argentina, the Mexican organizations affiliated to the IMF expressed their disagreement, and distanced themselves from the mechanism used in drawing up the complaint which was communicated to the affiliates after it had been drawn up, deposited and published in the Mexican press.
270. 853. They requested the immediate withdrawal of the complaint presented by the IMF Executive Committee, signed by Messrs Jurgen Peters and Marcello Malentacchi, to the International Labour Organization on 5 February 2009 relating to ILO Convention No. 87, against the Government of Mexico, as the affiliated Mexican trade unions had not been consulted on its preparation.
271. 854. The substance of the complaint fundamentally prejudices and damages the collective legal precepts of defence of collective bargaining which are ownership of the collective agreement, the right to strike and trade union safeguard clauses which in no way conflict with ILO Convention No. 87.
272. 855. The Confederation of Chambers of Industry of the United Mexican States (CONCAMIN) has indicated that the justification of the complaint refers to a series of questions of fact and opinions of various persons relating to the existence of CCTs signed between an employer and a trade union, which are identified as “CCPPs” and that these agreements violate Convention No. 87.
273. 856. In essence, what the complainants are targeting is the existence of a legitimate and lawful legal act, which occurs in Mexican labour practice, which, according to the complainants, consists of the signature of a CCT without the involvement of the workers in a given company.
274. 857. The part of the text of the LFT relating to collective agreements perfectly echoes the content of ILO Convention No. 87, as it fully respects Article 2 of Convention No. 87, that workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organization concerned, to join organizations of their own choosing without previous authorization. There is nothing in the rest of the articles to suggest the practice of a specific method of concluding collective agreements.
275. 858. It should be recalled that Mexico has not ratified Convention No. 98 concerning the right to organize and collective bargaining. However, it should not be considered that the way in which a CCT is signed has anything to do with freedom of association or the right of collective bargaining, as Mexican law and the abovementioned Conventions talk of the right of persons to form such trade unions as they see fit and the right of trade unions to bargain collectively. Thus, it must be considered that the signature of an agreement between a trade union regarded by law as a legal entity and an employer are not only legitimate acts allowed by legislation and international conventions, but they represent in themselves the exercise of a right enshrined in the law, namely the right to bargain collectively.
276. 859. It should also be pointed out that the supposed incapacity or impossibility of workers being involved in collective bargaining are not given as a principle of freedom of association, since the mere existence of a CCT between two entities, the trade union and the employer, confirms that the principle of freedom of association already applied precisely when the trade union which bargains collectively was formed.
277. 860. In essence, CONCAMIN considers that the complaint contains a series of opinions attributed to various persons, exhibits a series of press and academic articles which bear no relation to freedom of association and which, moreover, cannot be held to be valid, as they do not reflect an indisputable fact, that Mexican experience of press and academic publications is that, in the vast majority of cases, they modify, misrepresent or distort what is said by the putative sources of the statements. In the case of the annexed publication, it is clear that these are publications by a particular section of academia, with strong political tendencies which do not necessarily coincide with those of the majority of the public or that of the governments democratically elected by the country’s inhabitants and therefore they, too, cannot be considered indisputable.
278. 861. For the foregoing reasons, CONCAMIN rejects the receivability of the allegations, since they have nothing to do with the text of Convention No. 87.
279. 862. As regards the specific cases mentioned in the complaint concerning the agreement holder for the administration of collective agreements in petrol stations, this cannot be accepted, because it does not specifically define which employers are concerned. The cases of the Nivel Superior de Servicios SA de CV and Superservicios Coapa, SA de CV companies should be disregarded, since they have nothing to do with the complaint that refers to the existence of certain so-called “employer protection” collective agreements, but appear to be cases of decisions or collective disputes where two trade unions are fighting for the right to conclude agreements and represent workers in a workplace, which again contradicts the alleged violation of Convention No. 87, since it expressly states that there are two trade unions fighting each other, and that one claims to have won the right to administer collective bargaining in a ballot.
280. 863. In the case of Johnson Controls, we are talking of a typical case of outsourcing or subcontracting, and thus it has absolutely no bearing on the complaint.
281. 864. In the Black & Decker case, likewise, it is a matter of dismissals and another dispute over bargaining rights, where it is again clear that there was already a fight between two trade unions, and thus it also has no relation to Convention No. 87, since, by definition, for a trade union to exist, it must be formed by workers. If, in this particular case, there are two trade unions in dispute, it is obvious that freedom of association is satisfied and that it is up to the trade union which holds the majority to administer the collective bargaining.
282. 865. Furthermore, by referring to the various proposed reforms, the complainants are accepting, in essence, that there is a legal vacuum at the present time, which, on the one hand, allows exercise of the right to strike to obtain signature of a CCT, without demonstrating that the workers in the company in question are represented, which can obviously give rise to a legal fiction. This is because it is sufficient to claim to represent workers in a company to be able, in principle, to initiate strike action, even though not representing the workers in that company. In practice, this Confederation is obliged to express its great concern at the existence of this legal vacuum, which has given rise to endless abuses and which has become an instrument of extortion and blackmail.
283. 866. The fact of the matter is that, in the proposed legal reforms, the principle has been upheld that, to seek signature of a CCT, it is necessary to have certainty of representing workers in a given company. If that principle is not upheld, the principle of freedom of association is violated and workers of a company would be forced to accept, against their will, the presence of the trade union which demands the signature of a collective agreement. That is why the draft labour reforms contemplate this fundamental safeguard – democracy. For the persons cited in the complaint, it is clear to this Confederation that the researchers and academics mentioned have shown that they reject this form of democratic trade unionism, as they defend the idea of the supremacy of the trade union over the individual.
284. 867. In conclusion, CONCAMIN considers that the so-called complaint against the Mexican Government does not base its allegations on the subject of freedom of association, but on the form of worker–employer relations in the country which are perfectly legal and in consequence legitimate. It therefore considers that the ILO should reject the unfounded allegations contained in the document signed by the representatives of the IMF.
285. Mr Tomás Natividad Sánchez, member of the Employers’ Confederation of the Mexican Republic (COPARMEX)
286. 868. The justification of the claim contains many assertions and facts which are untrue, which must therefore be challenged. For example, it is stated that the proposed reforms of Mexican labour legislation put forward by the Government are the opposite of what is indicated in the complaint, as there is no government proposal to reform labour legislation. The proposals have been put forward by deputies and senators in the two houses.
287. 869. Cases have been given of trade unions which demand signature of a CCT, without representing the workers in the company in question, as those workers have not joined the trade union. In some areas, states or regions of the country where a company is to be set up or the opening of a new business is announced, still without hiring any workers, and on occasions without even being close to the start-up date, the future employer is notified of a strike for the signature of a collective agreement by these organizations, and the notice of strike is maintained until the employer starts operations.
288. 870. The need for trade unions which seek to sign a CCT with a company to prove to the authorities in advance that it does indeed represent the workers in the said workplace, or some of them, is one of the subjects which the manufacturing sectors have discussed with the federal labour authorities in the current negotiations on labour reform in the country.
289. 871. Nowadays, the large and medium-sized companies which operate in the country are subject to international codes of ethics which are applied and enforced in Mexico, from which derive rules which do not allow cases such as the protection agreement, which are secret and unknown to the workers, who should be the true beneficiaries of collective bargaining.
290. 872. It is true that the laws mentioned have been, and are the subject of, extensive discussion and review by the country’s manufacturing sectors which, coordinated by the federal Government, have negotiated multiple reforms of current legislation which it was not possible to finalize due to problems of a political nature.
291. 873. In the light of the foregoing, it is not true that our current legislation is prejudicial to the right to organize and that it always the employers who choose the agreement of their own preference. Nor is it true that our legislation includes provisions to protect workers which are not accessible to them and that there is a web of complicity established between the labour courts, employers and trade unions, and that therefore there exists what they call employer protection agreements.
292. 874. With regard to the matters stated in the complaint, the following should be noted:
293. - It is untrue that in Mexico workers do not choose the trade union which represents their labour interests, and that it is the employer that chooses the union that accords with his interests and signs a CCT without reference to its beneficiaries.
294. - The annexed cases which are intended as examples of violations of freedom of association and the right to organize do not support this in any way.
295. - The regulation allowed under the current legislation in Mexico does not restrict the radius of action of trade unions, as the country chose the various forms of trade unionism precisely in respect of freedom of association in order to allow trade unions: guilds, company, sectoral, national sectoral and other offices (article 360 of the LFT).
296. - The conclusion of agreements of respect and collaboration between the general secretaries of various trade unions and the Secretary of Labour and Social Security does not violate but protects freedom of association and the collective bargaining that derives from it.
297. - It is not true that the test of recuento is set in a context of violence and pressure to prevent workers obtaining access to the place where the ballot takes place. The Supreme Court of Justice has already determined in specific case law that there is a requirement for secret ballot in disputes over rights to conclude CCTs.
298. - Articles 2, 3, 5, 7 and 10 of Convention No. 87 are not violated in any way, as our current legislation clearly establishes those rights, which are fully respected in the terms set out in the Convention, which are in conformity with the Constitution, article 123(XVI) and articles 132(X), (XI), (XXI), and (XXII), 354, 356, 357, 368, 369, 374 and 381 of the LFT.
299. - It is not correct to state without proving it that there are no authorities which can resolve industrial disputes impartially. In Mexico, there are specialized labour courts and appeal (amparo) tribunals which resolve industrial disputes and which have been constituted in accordance with the law and which apply the current legislation in the country impartially and subject to law, rapidly, efficiently and free of charge.
300. - It is not true that there are violations of the rights contained in Convention No. 87 in any proposed reform of the LFT, as none of those which have been presented to the Chamber of Deputies and the Senate of the Congress of the Union – over 300 reform initiatives – affect workers’ rights, much less the freedom of association to which Convention No. 87 refers.
301. 875. In its complaint, the IMF indicates various decisions and principles adopted by the Committee on Freedom of Association of the Governing Body of the ILO, which were supposedly ignored by the Government of Mexico and which are the subject of the complaint, among which we highlight the following:
302. - Paragraph 8 of the complaint infers that “The practice in the Mexican model which hinders the right of association renders collective bargaining ineffective when the workers cannot participate and influence the setting of their conditions of work”.
303. In this regard, as has been shown in the present document, the Government of Mexico has guaranteed, through its Constitution and the LFT, the right of workers to decide their freedom of association with the object of protecting and influencing improvements in their conditions of work, while not omitting to point out that the complainant does not indicate any particular situation or fact in support of its assertion.
304. - In paragraphs 10, 11 and 12, it mentions that the CCPP limit the enjoyment and exercise of the rights of association, collective bargaining and trade union plurality by workers, because it imposes restrictions on the creation of new trade unions and gives preference to those that already exist. It cites paragraphs 296, 297, 309, 310, 339, 340, 341, 343 and 344 of the Digest of decisions and principles of the Freedom of Association Committee of the ILO Governing Body, 2006 (the Digest, 2006).
305. - In this respect, as stated and shown above, it should be noted that the Government of Mexico does not violate, or limit at any time, either the fact or right of freedom or association or collective bargaining of workers, recalling that its sole function is to maintain a register of existing associations. This is only required to satisfy certain elements of a formal character, which in practice are not insuperable for those who associate freely, the “taking note” is merely a matter of registration and not validation or recognition, as associations in Mexico do not require the latter formalities for their existence, let alone the authorization of the employers.
306. - In paragraphs 13 and 15, the IMF states that one of the pillars of the protection agreement model is the JCAs and that the Mexican State has failed to establish protection measures for those workers who promote freedom of association and cites paragraphs 33, 338, 770, 771, 772, 773, 775, 776, 780, 785 and 1261 of the Digest, 2006, because it is judge and party in the process of “taking note” of the trade union’s registration, signature, agreement holder and termination of CCTs and strike, and does not guarantee the protection of workers.
307. - Nevertheless, in previous paragraphs, the characteristics of the tripartite composition of the delivery of justice in Mexico are explained. It is transparent, impartial and, moreover, if workers so request, they receive free advice on protection of their labour and trade union rights through the Office of the Federal Prosecutor for Protection of Labour. In addition, specific criteria have been laid down by the Supreme Court of Justice to guarantee the right of Mexican workers to choose. Furthermore, as has been mentioned throughout the document, the IMF does not present specific evidence of its allegations.
308. - In paragraph 14, the IMF complains of the exclusion clause contained in some CCTs, indicating that it is an infringement of the workers’ right to join the organization of their choice and cites paragraphs 334, 335, 363 and 368 of the Digest, 2006.
309. In this respect, as has been mentioned previously in its articles 5 and 9, the Political Constitution of the United Mexican States enshrines, through its most important and representative institutions, the right to work and freedom of association.
310. - It emerges from paragraph 16 that the complainant considers that collective protection agreements violate the right of freedom of association because workers lack trade unions which reflect their interests, and mentions violation of paragraphs 597, 966, 967 and 984 of the Digest, 2006.
311. As mentioned throughout this document, and it has been the shared view of the workers’, employers’ and government sides, the collective protection agreement model is not a legal model recognized in Mexico. Moreover, the IMF does not provide convincing evidence, examples or facts of the existence of such agreements in Mexican labour practice.
312. - In paragraph 17, the IMF mentions the interference of the State through protection agreements by applying discretionary criteria to the requirements that must be fulfilled by trade unions for the purpose of registration, and bases their right on paragraphs 296, 297, 299, 303, 375, 377, 381, 388, 389, 967 and 986 of the Digest, 2006.
313. In this respect, and in order to avoid repetition, the Mexican State maintains a profound respect for the social institutions created to defend workers’ interests and the right to freedom of association, enshrined in the Political Constitution of the United Mexican States. It recalls that the registration requirements are merely formal, thus there is no interference by the Mexican Government, either in practice or in law in the life of trade unions, let alone their organization. It further recalls that the assertions of the IMF in this respect are obscure and general and do not provide sufficient items of evidence.
314. - Paragraph 18 mentions that the right to strike in the context of CCPPs becomes void, and bases this statement on paragraphs 520, 521, 522, 523, 524 and 525 of the Digest, 2006.
315. - As mentioned above, CCPPs do not exist in Mexican legislation, thus they cannot be considered, as the IMF seeks to do, as a means of limiting the workers’ right to strike set out in the LFT.
316. - Paragraphs 19 and 20 refer to proposals to reform the LFT which, according to the IMF, would present serious violations of the rights contained in Convention No. 87 and it provides an analysis of the content of the reforms. It should be pointed out that these reforms are not the law at present and that the possibility to which the IMF refers concerns future events which may not happen, as the proposed reforms presented by the Federal Executive, before being approved, must be discussed in the Congress of the Union in accordance with article 72 of the Political Constitution of the United Mexican States. Furthermore, it should be noted that it can be observed in the IMF’s own study that it makes an incorrect evaluation of the possible impacts of the reforms, which, as indicated above, cannot be the subject of evidence as they are not law as presently constituted in Mexico.
317. 876. The Mexican legal system does not contemplate the concept of so-called “CCPPs”. The Mexican Government therefore does not recognize in any way whatsoever the existence of such agreements, since trade unions are free to form themselves, draw up their constitutions, designate their representatives and leaders, and regulate their own structure and internal affairs.
318. 877. The document supposedly referred to as a complaint is the result of an obscure and general conceptual exercise, as it does not indicate specific infringements of freedom of association since, from the matters described in the communication, it cannot be inferred that the labour rights of the members of the complainant Federation have been violated, nor can it be inferred in any way that the right of workers to join a trade union has been infringed.
319. 878. The Mexican Government has established administrative bodies to provide guidance and legal advice, not only to workers individually, but also to trade unions, in seeking respect for labour rights, including before the competent authorities by delivering decisions which are implemented while at the same time fostering settlement of disputes. In no way, therefore, can it be argued that the Mexican Government violates the labour laws which the Government itself promotes and supports.
320. 879. Trade unions have the right to give notice of a strike to the employers, in order to sign a CCT which contains additional benefits for the workers in return for their services. In that case, the agreements are the result of the conciliation achieved between workers and employers, but always to the benefit of the general conditions in which the work is performed, from which it can be seen, once again, that the “employer protection agreements” alleged by the complainant organization do not exist.
321. 880. The tripartite composition of the JFCAs is envisaged in sections 605, 606, 607, 608 and 609 of the LFT, thus its decisions are founded in law, fair and seek to strike a balance between the factors of production, without the decision favouring one side in particular, as its decisions are adopted collectively.
322. 881. In the case law, opinion No. 150/2008 of the Supreme Court of Justice establishes the obligations of the JFCA to process claims for rights to CCTs in all recuentos by secret ballot of workers, thereby guaranteeing the free will of the workers and protecting confidentiality in the exercise of the vote on the trade union which is to administer the collective agreement.
323. 882. In 2003, in the framework of the Federal Act on Transparency and Access to Public Government Information, the JFCA began a digitalization programme.
324. With the publication of CCTs, any worker has the possibility of knowing and obtaining a copy of it, as well as his duties, the trade union to which he belongs and the name of the general secretary. This has led to a new awareness among workers which will have a favourable impact on the development of individual and collective labour relations and freedom of association.
325. 883. Trade unions in Mexico have a variety of means of legal recourse which they can use if they consider that their rights of freedom of association have been infringed, including, when they have exhausted the relevant recourses, in international bodies, such as the complaints against the Mexican Government in the ILO Committee on Freedom of Association.
326. Between 1954 and 2010, that Committee has examined 48 cases concerning Mexico, of which 43 have been concluded by the ILO body and five are still under examination. The concluded cases are an indication that the Mexican Government has implemented the recommendations of the CFA, in accordance with the law.
327. 884. The reforms of the legal provisions on labour matters in Mexico have been carried out with the collaboration of the International Labour Office and in the light of its recommendations.
328. 885. In the opinion of the CTM, the mechanisms for concluding a CCT are fully identified and established in the LFT and any practice not laid down in law is barred.
329. 886. The Mexican authorities have never failed to follow the recommendations issued by the Committee on Freedom of Association of the Governing Body of the International Labour Organization as they are recommendations which the Government has taken into consideration and acted accordingly, thus fully complying with the provisions of Convention No. 87. This means that the Mexican Government has never infringed the rights of association of any Mexican worker.
330. 887. In Mexico, there is no limitation whatsoever on the right of freedom of association. In Mexico, there is no violation of the right to freedom of association or to meet peacefully for any lawful purpose including the right to organize.
331. 888. The CROC, a Mexican organization affiliated to the IMF, distanced itself from the mechanism used in the preparation of the complaint and requested the immediate withdrawal of the complaint presented by the Executive Committee of the IMF.
332. 889. The CONCAMIN considers that the complaint contains a series of opinions attributed to various persons, exhibits a series of press and academic articles which bear no relation to freedom of association and rejects the receivability of these allegations as they bear no relationship to the text of Convention No. 87.
333. 890. As regards the cases of the Nivel Superior de Servicios SA de CV and Superservicios Coapa SA de CV companies, these should be disregarded, since they have nothing to do with the complaint but appear to be cases of proceedings or collective disputes where two trade unions are fighting for bargaining rights and the right to represent workers in a workplace. In the case of Johnson Controls, we are talking of a typical case of outsourcing or subcontracting, and thus it has absolutely no relevance to the complaint.
334. 891. The legal existence of trade unions, for the sake of order and legal clarity, depends on registration granted by the competent labour authorities, the STPS for federal trade unions, local JCAs in the various states of the Republic and the federal district for local jurisdiction, through which bodies trade union life is regulated and whence the legal existence of trade unions originates.
335. 892. It is not true that our current legislation is prejudicial to the right to organize and that it is always the employers who choose the agreement of their own preference. Nor is it true that our legislation includes provisions to protect workers which are not accessible to them and that there is a web of complicity between the labour courts, employer and trade unions, and that therefore there exists what they call CCPPs.
336. 893. Articles 2, 3, 5, 7 and 10 of Convention No. 87 are not violated in any way, as our current legislation clearly establishes those rights, which are fully respected in the terms set out in the Convention, which are in conformity with the Constitution, section 123(XVI) and articles 132(X), (XI), (XXI) and (XXII), 354, 356, 357, 368, 369, 374 and 381 of the LFT.
337. 894. In the light of the foregoing, the CFA is requested to refuse the complaint submitted.

C. The Committee’s conclusions

1. 895. The Committee observes that in this complaint, the complainant organization questions the overall functioning of the industrial relations system in Mexico with regard to the recognition of trade unions and their executive boards (toma de nota), which its describes as discretionary; the possibility of the employer signing a generally applicable collective agreement with the trade union of its choice before the company starts operating or without the need to prove the trade union’s representativeness or the participation of the workers, containing practically the minimum protection required under labour legislation (in the opinion of the complainant organization, the vast majority of collective agreements are of that kind); the obstacles in practice to showing through a ballot the greater representativeness of another trade union; the lack of independence, impartiality and excessive slowness of the authorities (JCAs) responsible for complaints of violation of trade union rights; the obstacles to the exercise of the right to strike, and draft laws designed to further hinder the exercise of trade union rights. The complainant organization denounces a web of corruption between the trade union organizations and employers with the complicity of the authorities which impacts on the JCAs. Furthermore, according to the complainant organization, when the workers try to exercise their trade union rights against this background, they are confronted with acts of violence, threats and acts of discrimination. ITUC indicates in its communication dated 12 April 2010 that the complaint is based on the violation of the right to organize, on the premise that it is the workers who should freely chose the trade union which represents their occupational interests; when it is the employer which chooses the trade union in accordance with its own interests and signs a collective agreement (CCT) without the involvement of its beneficiaries, the fundamental workers’ rights contained in ILO Convention No. 87 are violated.
2. 896. The Committee notes that in its supplementary information, the complainant organization states that: (1) employer protection agreements are not regulated by labour law; the name has been attributed on the basis of what has become common practice in Mexico; (2) it was indicated that the signature of a collective agreement becomes a unilateral act which is decided by the employer which can choose its preferred trade union even before the source of employment exists; (3) it is alleged that it is a legal act in that, under section 387, there is no precondition at all for the signature of a collective agreement between the employer’s representative and the fake trade union, nor is prior consultation of the workers necessary, nor even a minimum number of workers; it is sufficient that two workers from a population of one thousand so request for the formal requirement to be satisfied and the collective agreement signed, and, in accordance with section 396, for its provisions to extend to all persons working in the company or establishment, even if they are not members of the trade union which concluded the agreement. Only two signatures are required to conclude a collective agreement, that of the employer’s representative and that of the general secretary of the trade union, followed by filing with the competent JCA; (4) once the agreement has been filed with the board, a process of protection commences which prevents other workers from demanding signature of a collective agreement by means of a strike, as set out in section 450(II) of the Federal Labour Act. As observed in section 923, no notice of a strike which demands the signature of a collective agreement may be processed if one has already been filed, because in that case the position would be occupied, thus preventing an authentic trade union from seeking the signature of a collective agreement and, in the event of a refusal, calling a strike to demand its signature; (5) once the agreement has been signed with the trade union selected by the employer and filed with the Board, the only option left open to the workers is to seek a change of bargaining rights under the collective agreement, as the possibility of signature has been blocked. To obtain these bargaining rights, they have two options: register the trade union in accordance with the requirements of section 365 of the Federal Labour Act or claim bargaining rights by a proceeding which is usually very complicated and which requires the majority of the workers; (6) it should be emphasized that although signing a collective agreement does not require proving any number or majority, if the employer refuses to sign and it is necessary to call a strike, in the latter case it is necessary to have the majority set out in section 451(II); in other words, the signature of the collective agreement is in the hands of the employer and this has resulted in leaders of fake trade unions seeking to be chosen or invited by the companies to sign them; according to the IMF, it is sufficient to look at the website of the Federal District Arbitration and Conciliation Board to confirm the filing of collective agreements with the minimum legal requirements concluded simultaneously in a whole chain of workplaces; the IMF emphasizes the existence of protection agreements as a widespread practice which has been confirmed by major companies and persons now holding posts in the Ministry of Labour; and (7) according to the IMF, what happens is a simulation of collective bargaining. Studies conducted in the National Autonomous University of Mexico by a researcher (Doctor Alfonso Bouzas Ortíz) confirm that over 90 per cent of collective agreements registered in Mexico City are dead or moribund. In other words, they are not revised, not bargained and are maintained at the legal minimum, i.e. they are mere semblances of collective agreements. The Committee notes that, according to the IMF, several democratic sectors have demanded that the Mexican Government should ratify ILO Convention No. 98, which it has resisted, claiming that to do so would infringe national legislation, particularly with reference to the exclusion clause (a trade union protection clause), a legal provision which is quite rigorously applied in practice, but has been declared unconstitutional on two occasions by the Mexican Supreme Court of Justice
3. 897. The Committee notes the Government’s explanations concerning the content of the legal provisions and available procedures, and also its conclusions on this case which perfectly summarize its position:
   • (a) The Mexican legal system does not provide for so-called “employer protection collective agreements (CCPP)”. In this regard, the Mexican Government does not recognize in any way whatsoever the existence of such agreements, since trade unions are free to form themselves, draw up their constitutions, designate their representatives or leaders and regulate their own structure and internal procedure.
   • (b) The document supposedly referred to as a complaint is the result of an obscure and general conceptual exercise, as it does not indicate specific infringements of freedom of association since, from the matters described in the communication, it cannot be inferred that the labour rights of the members of the complainant Federation have been violated, nor can it be inferred in any way that the right of workers to join a trade union has been infringed.
   • (c) The Mexican Government has established administrative bodies which provide guidance and legal advice, not only to workers as individuals, but also to trade unions, to assert their labour rights, including before the courts, by delivering the respective judgments which must be enforced while at the same time fostering the settlement of disputes. Thus, in no way can it be argued that the Mexican Government violates the labour laws which the Government itself promotes and supports.
   • (d) Trade unions have the right to give notice of a strike to the employers, in order to sign a CCT which contains additional benefits for the workers in return for their services. In that case, the agreements are the result of the conciliation achieved between workers and employers, but always to the benefit of the general conditions in which the work is performed, from which it can be seen, once again, that the “employer protection agreements” alleged by the complainant organization do not exist.
   • (e) The tripartite composition of the JFCAs is envisaged in sections 605, 606, 607, 608 and 609 of the LFT, thus its decisions are founded in law, fair and seek to strike a balance between the factors of production, without the decision favouring one side in particular, as its decisions are adopted collectively.
   • (f) In the case law, opinion No. 150/2008 of the Supreme Court of Justice establishes the obligations of the JCA to process claims for rights to CCTs in all recuentos by secret ballot of workers, thereby guaranteeing the free will of the workers and protecting confidentiality in the exercise of the vote on the trade union which is to administer the collective agreement.
   • (g) In 2003, in the framework of the Federal Act on Transparency and Access to Public Government Information, the JFCA began a digitalization programme. With the publication of CCTs, any worker has the possibility of knowing and obtaining a copy of it, as well as his duties, the trade union to which he belongs and the name of the general secretary. This has led to a new awareness among workers which will have a favourable impact on the development of individual and collective labour relations and freedom of association.
   • (h) Trade unions in Mexico have a variety of means of legal recourse which they can use if they consider that their rights of freedom of association have been infringed, including, when they have exhausted the relevant recourses, in international bodies, such as the complaints against the Mexican Government in the ILO Committee on Freedom of Association. Between 1954 and 2010, that Committee has examined 48 cases concerning Mexico, of which 43 have been concluded by the ILO body and five are still under examination. The concluded cases are an indication that the Mexican Government has implemented the recommendations of the CFA, in accordance with the law.
   • (i) The reforms of the legal provisions on labour matters in Mexico have been carried out with the collaboration of the International Labour Office and in the light of its recommendations.
   • (j) In the opinion of the Mexican Workers’ Confederation (CTM), the mechanisms for concluding a CCT are fully identified and established in the LFT and any practice not laid down in law is barred.
   • (k) The Mexican authorities have never failed to follow the recommendations issued by the Committee on Freedom of Association of the Governing Body of the International Labour Organization as they are recommendations which the Government has taken into consideration and acted accordingly, thus fully complying with the provisions of Convention No. 87. This means that the Mexican Government has never infringed the rights of association of any Mexican worker.
   • (l) In Mexico, there is no limitation whatsoever on the right of freedom of association. In Mexico, there is no violation of the right to freedom of association or to meet peacefully for any lawful purpose including the right to organize.
   • (m) The CTM questions the assertions in the IMF complaint and the Revolutionary Confederation of Workers and Peasants (CROC), a Mexican organization affiliated to the IMF, distanced itself from the mechanism used in the preparation of the complaint and requested the immediate withdrawal of the complaint presented by the Executive Committee of the IMF.
   • (n) The CONCAMIN considers that the complaint contains a series of opinions attributed to various persons, exhibits a series of press and academic articles which bear no relation to freedom of association and rejects the receivability of these allegations as they bear no relationship to the text of Convention No. 87.
   • (o) As regards the cases of the Nivel Superior de Servicios SA de CV and Superservicios Coapa SA de CV companies, these should be disregarded, since they have nothing to do with the complaint but appear to be cases of proceedings or collective disputes where two trade unions are fighting for bargaining rights and the right to represent workers in a workplace. In the case of Johnson Controls, we are talking of a typical case of outsourcing or subcontracting, and thus it has absolutely no relevance to the complaint.
   • (p) The legal existence of trade unions, for the sake of order and legal clarity, depends on registration granted by the competent labour authorities, the STPS for federal trade unions, local JCAs in the various states of the Republic and the federal district for local jurisdiction, through which trade union life is regulated and whence their legal existence originates.
   • (q) It is not true that the current legislation is prejudicial to the right to organize and that it is always the employers who choose the agreement of their own preference. Nor is it true that the legislation includes provisions to protect workers which are not accessible to them and that there is a web of complicity between the labour courts, employer and trade unions, and that therefore there exists what they call CCPPs.
   • (r) Articles 2, 3, 5, 7 and 10 of Convention No. 87 are not violated in any way, as the current legislation clearly establishes those rights, which are fully respected in the terms set out in the Convention, which are in conformity with the Constitution, article 123(XVI) and articles 132(X), (XI), (XXI) and (XXII), 354, 356, 357, 368, 369, 374 and 381 of the LFT.
4. 898. The Committee concludes that the statements of the complainant organization and the Government are largely contradictory. The Committee observes that the Government focuses more on the legal aspect and denies the existence of CCPPs, while the complainant organization emphasizes that it concerns mechanisms that exist in practice because the legislation does not require a trade union to prove a certain degree of representativeness to register a collective agreement, even before the company starts operations. The Committee observes that the Government also questions the validity of the examples of companies provided by the complainant organization in support of its allegations.
5. 899. The Committee wishes to point out that on previous occasions it has requested certain legislative reforms to strengthen trade union rights, and has found that there has been excessive delay by the administrative or judicial authorities in relation to the registration of certain trade unions or the recognition of certain trade union executive boards; in addition, the Committee has been made aware of cases of violence between trade union factions which claimed to be more representative. Furthermore, the IMF emphasizes that a considerable proportion of the problems it raises refer to the fact that, even though, on two occasions, the Supreme Court of Justice has declared trade union protection clauses, so-called “exclusion clauses”, unconstitutional, these clauses operate quite rigorously in practice.
6. 900. The Committee also observes that both the complainant organization and the Government had reported that there are bills for reform of labour and trade union legislation before the National Congress.
7. 901. In these circumstances, taking into account the contradictions between the allegations and the Government’s reply and that the employers’ organizations, the CTM and the CROC, question the complaint, the Committee invites the Government to take measures to initiate a constructive dialogue with the workers’ organizations (including the five complainants) and employers’ organizations, on the application of the labour and trade union legislation. This dialogue should include: (1) the questions relating to the trade union protection clauses, “exclusion clauses”, declared unconstitutional by the Supreme Court which may give rise to certain situations contemplated in the complaint; (2) questions relating to the minimum representativeness of trade unions in order to bargain collectively; and (3) the allegations of the lack of impartiality of the JCAs and the allegedly excessive length of their proceedings. The Committee requests the Government to inform it of the meetings held and of the outcome of this dialogue.
8. 902. The Committee also requests the Government to reply specifically to the allegations and examples from the complainants concerning: (1) the public personalities, including public authorities, which made statements concerning the reality of employer protection collective agreements and the high number of these agreements; and (2) the specific cases of enterprises mentioned in paragraphs 796–799, including the allegations of deficient or partial functioning of the JCAs in relation to the exercise of the distinct trade union rights of the STRACC.

The Committee's recommendations

1. 903. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee invites the Government to take measures to initiate a constructive dialogue with the workers’ organizations (including the five complainants) and employers’ organizations, on the application of the labour and trade union legislation. This dialogue should include: (1) the questions relating to the trade union protection clauses, “exclusion clauses”, declared unconstitutional by the Supreme Court which may give rise to certain situations contemplated in the complaint; (2) questions relating to the minimum representativeness of trade unions in order to bargain collectively; and (3) the allegations of the lack of impartiality of the conciliation and arbitration boards (JCAs) and the allegedly excessive length of its proceedings. The Committee requests the Government to inform it of the meetings held and the outcome of this dialogue.
   • (b) The Committee also requests the Government to reply specifically to the allegations and examples from the complainants concerning: (1) the public personalities including public authorities, which made statements concerning the reality of employer protection collective agreements and high number of these agreements; and (2) the specific cases of enterprises mentioned in paragraphs 796–799, including the allegations of deficient or partial functioning of the JCAs in relation to the exercise of the distinct trade union rights of the STRACC.