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Informe definitivo - Informe núm. 358, Noviembre 2010

Caso núm. 2734 (México) - Fecha de presentación de la queja:: 09-SEP-09 - Cerrado

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Allegations: Obstruction by the authorities regarding the establishment of organizations, introduction of non-statutory requirements for the exercise of trade union rights and delays affecting legal procedures before the authorities concerning the exercise of trade union rights as well as affecting the respective rulings
  1. 661. The complaint is contained in a communication of the Trade Union of Workers and Employees of the Plastics, Synthetics, Rubber, Pottery, Glass, Similar and Related Industries of the Federal District, the Trade Union of Workers and Employees of the Metal, Metalwork, Similar and Related Industries of the Federal District, the Luis Donaldo Colosio National Trade Union of Workers and Employees of General Industry, the Dr Luis Donaldo Colosio Murrieta Trade Union Front of Workers of the Iron, Metalwork, Similar and Related Industries of the Federal District and the Revolutionary Trade Union of Workers and Employees of the Plastics and Related Industries of the Federal District, dated 9 September 2009.
  2. 662. The Government sent its observations in a communication dated 3 August 2010.
  3. 663. Mexico has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), but has not ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant organizations’ allegations

A. The complainant organizations’ allegations
  1. 664. In their communication dated 9 September 2009, the complainant organizations (the Trade Union of Workers and Employees of the Plastics, Synthetics, Rubber, Pottery, Glass, Similar and Related Industries of the Federal District, the Trade Union of Workers and Employees of the Metal, Metalwork, Similar and Related Industries of the Federal District, the Luis Donaldo Colosio National Trade Union of Workers and Employees of General Industry, the Dr Luis Donaldo Colosio Murrieta Trade Union Front of Workers of the Iron, Metalwork, Similar and Related Industries of the Federal District and the Revolutionary Trade Union of Workers and Employees of the Plastics and Related Industries of the Federal District) allege that since 2000, the Government of the Federal District, through the Local Conciliation and Arbitration Committee of the Federal District (JLCADF), has been obstructing and hindering workers and trade union organizations wishing to exercise freedom of association. This hindrance takes the form of violations of trade union rights, in particular, slowing down the processing of requests for trade union registration submitted to the JLCADF by legally established trade unions, obliging them to meet non-statutory requirements, or formulating absurd preventive measures which render the right to register trade unions in Mexico City ineffectual. Registration is only granted to those trade unions which offer unconditional support to the JLCADF. One of the most worrying practices carried out by the Government of the Federal District through the JLCADF is the refusal by the Office of the Clerk of the JLCADF to receive requests regarding trade union registration, strike notices, documents updating statutes and lists of members, requests for certification as the bargaining agent and other collective issues, deposits of collective agreements by independent trade union organizations not under the control of the abovementioned government, or which do not belong to the group which dominates the JLCADF and which manipulates said body for its own benefit. Representatives of trade union organizations are thus obliged to use registered mail with receipt of delivery or other means in order to force the authorities to receive requests relating to freedom of association, strikes and collective agreements. This is a disgraceful practice, unheard of in any other federative body, the aim of which is to render ineffectual the submission of any kind of challenge to the will of the JLCADF.
  2. 665. Furthermore, the complainant organizations point out that section 920 of the Federal Labour Act states that the strike procedure shall be initiated with the submission of a list of claims stating the requirements which must be met and sets out the actions which must be taken by the relevant Conciliation and Arbitration Committee. However, in practice, when a trade union requests the signing of a collective agreement through a strike notice, the JLCADF proceeds, in an illegal fashion, to require that the applicant trade union meet non-statutory requirements such as providing proof that the workers actually belong to the trade union issuing the strike notice, submitting the names of those workers in the service of the employer in question, and backing this up by producing documents such as those proving registration with the Mexican Social Security Institute (IMSS) (documents which are no longer in use because registration with the IMSS is now carried out by electronic means). Moreover, an employer only has to fail to register his/her workers with the IMSS, as frequently occurs and as is the case with petrol stations, for the workers to be refused documents proving the existence of a labour relationship, and for the right to strike enshrined in paragraph A of section 123 of the Political Constitution of the United States of Mexico to be rendered ineffectual.
  3. 666. Despite the fact that, under section 921 of the Federal Labour Act, the Chair of the Conciliation and Arbitration Committee, or the competent authority, is strictly bound to deliver a copy of the list of claims with strike notice to the employer within 48 hours of having received it, in practice the JLCADF delays the processing of the list beyond the expiry of the period referred to above. This tactic allows the employer to deposit an “employer protection collective agreement” (an agreement signed by an employer with a trade union willing to allow that employer to dictate working conditions, thus depriving the workers of their collective trade union rights) signed with another trade union. Thus, the employer can disregard the strike notice issued by the most representative trade union and avoid having to comply with an authentic collective agreement. It should also be pointed out that the JLCADF acts in a partisan manner, favouring the processing of strike notices submitted by unrepresentative or extortive trade unions. Corruption is widespread within the JLCADF, with labour justice going to the highest bidder.
  4. 667. Despite the fact that the Second Chamber of the Supreme Court of Justice of the Nation (the highest court in the country) declared this anti-union practice to be illegal in case law argument 2ª./J. 15/2003, the JLCADF has chosen to ignore case law and continues to set conditions for the processing of strike notices regarding the signing of a collective labour agreement.
  5. 668. Consequently, the complainant organizations wish to protest against these practices which violate freedom of association, requesting that the Government be advised to prevent the JLCADF from indulging in any such activity and calling for an end to the practice whereby the processing of strike notices regarding the signing of a collective labour agreement is conditional upon the presentation of documents or the fulfilment of other non-statutory requirements. They also call for list of claims attached to strike notices to be processed within the time period established by law.
  6. 669. According to the complainant organizations, the JLCADF arbitrarily refuses to issue certified copies of its acknowledgements and trade union statutes requested by trade unions, or limits itself to issuing two or five copies, thus contravening section 723 of the Federal Labour Act. Furthermore, the JLCADF arbitrarily disregards the powers conferred by general secretaries of trade unions given that it has repeatedly refused to deliver documents to persons authorized by said general secretaries to receive them, thus violating section 692 of the Federal Labour Act. Moreover, when a trade union submits a request to the JLCADF for the withdrawal of bargaining agent status for collective agreements from another trade union which no longer represents the majority of the workers, the JLCADF arbitrarily sets the following requirements regarding the processing of the request: provision of proof that the workers at the workplace in question belong to the applicant trade union, along with that trade union’s statutes; provision of proof that the workers are in the employ of the employer in question. Thus the autonomy of trade unions is weakened, given that once the workers’ names have been provided to the JLCADF this information may find its way back to the employer, prompting him/her immediately to dismiss the workers. Finally, the JLCADF fails to comply with the guarantee of prompt and expeditious justice enshrined in section 17 of the Constitution, as well as the provisions of section 838 of the Federal Labour Act which state that the Committee shall issue its rulings before the relevant legal body or within 48 hours of having received written submissions. However, as previously stated, the JLCADF issues rulings after considerable delay. The JLCADF, acting in an illegal manner, employs delaying tactics and sets absurd non-statutory requirements for trade unions requesting the respective acknowledgement regarding changes concerning trade union officials.
  7. B. The Government’s reply
  8. 670. In its communication of 3 August 2010, the Government raises objections regarding the receivability of the complaint and states that, in accordance with paragraph 82(a) of the Handbook of procedures relating to international labour Conventions and Recommendations (hereafter referred to as the Handbook of procedures), in order that a complaint may be received, it must be submitted in writing, signed and supported by proof of allegations relating to specific infringements of freedom of association. In the case in question, these requirements were not met given that, in the document dated 9 September 2009, the trade unions put forward a series of generic, subjective and confused arguments, while failing to provide accompanying proof supporting their allegations. Moreover, it is clear that the complainant trade unions have provided as proof copies of newspaper cuttings, claims and various statements which do not refer to specific cases of violations of freedom of association and which consequently do not constitute evidence that acts of antiunion discrimination have taken place. Therefore, the Committee on Freedom of Association is requested to disregard the present complaint, given that it fails to comply with the provisions of paragraph 82(a) of the Handbook of procedures in that the trade unions do not provide any reliable evidence to support their allegations.
  9. 671. The Government considers that the complaint should not be received in light of the fact that it fails to comply either with paragraph 31 of the Procedures for the examination of complaints alleging violations of freedom of association (2006) (hereafter referred to as the Procedures), or with paragraph 82(b) of the Handbook of procedures, in which the ILO establishes that:
  10. 31. Complaints lodged with the ILO, either directly or through the United Nations, must come either from organizations of workers or employers or from governments. Allegations are receivable only if (a) they are submitted by a national organization directly interested in the matter (b) by international organizations of employers or workers having consultative status with the ILO or (c) other international organizations of employers or workers where the allegations relate to matters directly affecting their affiliated organizations. Such complaints may be presented whether or not the country concerned has ratified the freedom of association Conventions.
  11. 82(b). Complaints must come from organizations of employers or workers or from governments. An organization may be:
  12. (i) a national organization directly interested in the matter;
  13. (ii) an international organization of employers or workers which has consultative status with the ILO; and
  14. (iii) another international organization of employers or workers, where the allegations relate to matters directly affecting affiliated organizations.
  15. 672. In this regard, the Government states that the trade unions fail to provide any evidence linking them to the matter or which might suggest that the JLCADF was at fault and therefore the complainant trade unions have failed to prove that their trade union rights have been harmed or threatened. Consequently, none of these complainants constitutes a national organization directly interested in the matter.
  16. 673. It is clear from the statements made and the documents submitted as proof that the JLCADF provided the trade union organizations with the acknowledgements they had requested. Therefore, the claims that this body has refused since 2000 to issue such acknowledgements, or indeed to process requests, are groundless, in particular given that the documents (all of which were issued by the JLCADF) examined bear dates showing them to have been issued after the year in question.
  17. 674. The trade unions present as proof the agreements dated 5 March and 22 June 2009, contained in labour files Nos 246/2009 and 551/2009, regarding the Trade Union of Store Workers and Employees, Similar and Related Industries of the Federal District (hereafter to be known as the Trade Union of Store Workers of the Federal District), as well as the document dated 7 August 2009 referring to the hearing granted. However, it should be pointed out that these documents are related to a trade union not signatory to the present complaint and therefore they are of no value as evidence that harm was done to the complainant trade unions.
  18. 675. Moreover, the complaint does not contain any proof whatsoever that the JLCADF violated any international agreement. Thus, it cannot be concluded that any of the principles established in the ILO Conventions were violated.
  19. 676. Finally, the trade unions also failed to prove that they had been prevented from exercising their right to draw up constitutions, regulations, freely elect their representatives, organize their administration and activities, as well as formulate programmes, given that at no time do they demonstrate that the authorities acted in such a way. Therefore, the Government concludes that none of the trade unions signatory to the complaint have proved that their trade union rights were harmed or affected; they fail to provide sufficient proof supporting their allegations, and thus do not comply with paragraph 82(a) and (b) of the Handbook of procedures, or with the provisions of paragraph 31 of the Procedures; the documents provided contain no evidence of any violation having been committed by the JLCADF; no reference is made to any specific violation regarding freedom of association. Thus, the present complaint should not be received.
  20. 677. The Government adds, however, that despite the objections raised, in the interests of cooperating in good faith regarding the work of the Committee on Freedom of Association, it includes the following comments on the substance of the complaint.
  21. 678. According to the complaint, as a result of the conduct of the JLCADF, the Government has been violating the principle of freedom of association, slowing down the processing of requests for trade union registration submitted to it by legally established trade unions, obliging them to meet non-statutory requirements or formulating absurd measures which render ineffectual the right to register trade unions in Mexico City. In this regard, the Government states that the proof submitted by the trade unions consisting of the agreements dated 5 March and 22 June 2009, issued in labour files Nos 346/2009 and 551/2009, both concerning the Trade Union of Store Workers, and the document of 7 August 2009, only shows that the respective integrated labour proceedings against the enterprise Servicio Comercial Garis SA de CV exist and that preventive measures were taken that were dealt with in time, but does not show that action harmful to or violating the rights of the complainants was taken by the JLCADF. Therefore, the claim that the JLCADF only grants registration to trade unions which support it unconditionally is subjective. The evidence provided is insufficient to support this claim.
  22. 679. The JLCADF states that, when issuing rulings, it follows the Political Constitution of the United States of Mexico, the Federal Labour Act, the case law issued by the Supreme Court of Justice of the Nation and the collegiate courts, as well as the provisions of the ILO Conventions signed and ratified by Mexico. Therefore, the JLCADF refutes the allegations made by the complainant trade unions.
  23. 680. A copy of the communication acknowledging the new designation, reformed statute, executive committee and list of members of the Dr Luis Donaldo Colosio Murrieta Trade Union Front of Workers of the Iron, Metalwork, Similar and Related Industries of the Federal District, dated 25 September 1995, was provided. Acknowledgements were also issued regarding the executive committees of the following trade unions (with dates):
  24. - the Trade Union of Workers and Employees of the Metal, Metalwork, Similar and Related Industries of the Federal District, 13 February 2000;
  25. - the Revolutionary Trade Union of Workers and Employees of the Plastics and Related Industries of the Federal District, 3 May 2005;
  26. - the Trade Union of Workers and Employees of the Wood, Paper and Cardboard Processing Industry, the Graphic Arts, Upholstery, Carpentry, Woodwork and Similar and Related Industries of the Federal District, 17 March 2006; and
  27. - the Trade Union of Workers and Employees of the General Plastics, Chemicals, Ceramics, Synthetic Pastes, Rubber, Pottery and Glass, Similar and Related Industries of the Federal District, 5 June 2006.
  28. 681. The abovementioned documents show that the statements made in the first point of the complaint are groundless, given that the complainants themselves demonstrate that the JLCADF issued the acknowledgements, fulfilling the corresponding legal requirements.
  29. 682. As to the allegation regarding the refusal by the Office of the Clerk of the JLCADF to receive requests regarding trade union registration, strike notices, the updating of statutes and lists of members, requests for certification as the bargaining agent and other collective issues, deposits of collective agreements by independent trade union organizations not under the control of the abovementioned government, or which do not belong to the group which dominates the JLCADF (an organization which, according to the complainant trade unions, forces applicants to use registered mail with receipt of delivery or other means if they wish to oblige the authorities to receive requests relating to freedom of association, strikes and collective agreements), the Government states that the evidence submitted by the complainant trade unions does not prove that such claims are accurate, given that no proof was provided showing that the Office of the Clerk of the JLCADF refused to receive documents, nor that only documents originating from trade unions allegedly inclined to support the JLCADF are received. Moreover, there is no evidence to support the complainants’ claims that they were obliged to use registered mail with receipt of delivery or other means in order to send documents related to the registration of other trade unions, strike notices and collective agreements to the JLCADF, such claims therefore being subjective and baseless. When issuing rulings, the JLCADF complies with the legal provisions and therefore all the claims made in the complaint are groundless. Those requests for trade union registration which meet the statutory requirements are granted within the time frame set out by law, as is the case with the trade union registrations granted by the JLCADF to Luis Cuadra Bermúdez, Miguel Ángel Cuadra Andrade and Ana Luisa Cuadra Andrade (listed below):
  30. – file No. 1147. Trade Union of Workers and Employees of the General Plastics, Chemicals, Ceramics, Synthetic Pastes, Rubber, Pottery and Glass, Similar and Related Industries (General Secretary: Mr Miguel Ángel Cuadra Andrade);
  31. – file No. 1234. Trade Union of Workers and Employees of the Metal, Metalwork, Similar and Related Industries of the Federal District (General Secretary: Mrs María Luisa Cuadra Andrade);
  32. – file No. 1459. Trade Union of Workers and Employees of the Wood, Paper and Cardboard Processing Industry, the Graphic Arts, Upholstery, Carpentry, Woodwork and Similar and Related Industries of the Federal District (General Secretary: Mr Luis Cuadra Bermúdez);
  33. – file No. 2286. Trade Union Association of Workers and Employees of the Food Products and Derivatives, Similar and Related Industries of the Federal District (General Secretary: Mr Luis Cuadra Bermúdez);
  34. – file No. 3079. Trade Union Group of Workers and Employees of the Clothing, Thread, Materials and Leather Processing and Manufacture Industry and Trade and the Dyeing Laundry, General Auto-transport, Similar and Related Industries of the Federal District (General Secretary: Mr Luis Cuadra Bermúdez); and
  35. – it should also be pointed out that the request for registration of the National Trade Union of Workers and Employees of the Construction, Haulage, Building, Excavation, Similar and Related Industries of the Federal District (General Secretary: Mr Luis Cuadra Bermúdez) is currently being processed by the JLCADF and the matter will be resolved in the near future.
  36. 683. As to the allegation regarding delays affecting the processing of strike notices and the imposition of non-statutory requirements upon trade unions making known their intention to hold a strike (with the aim of helping the employer to deposit an “employer protection collective agreement” with another trade union, thus allowing the employer to disregard the strike notice issued by the most representative trade union and avoid having to comply with an authentic collective agreement), the Government states that the complainant trade unions’ statements are subjective, given that the trade unions provide no proof to support their arguments or statements. Moreover, they make generic statements, failing to provide details regarding the non-statutory requirements allegedly introduced by the JLCADF. The complainant trade unions overlook the fact that Mexican law does not make provision for employer protection collective agreements, given that the workers are free to band together to defend their common interests and can establish independent trade unions free of employer interference. Each trade union is free to establish itself, request registration, draw up statutes and regulate its own administration and internal affairs. The conciliation and arbitration committees do not assist employers in cases where strike notices have been issued by trade unions. The Government recalls that the committees are tripartite bodies, including employers, workers and government, and thus responsibility in terms of decision-making is shared out equitably. In the unlikely event of a complainant trade union organization, or any other organization, detecting a conflict of interests regarding one of the representatives of a committee involved in dealing with a specific matter or case, that trade union or organization has the right to request that that representative desist from conducting the procedure in question. Section 710 of the Federal Labour Act establishes that if any of the parties know of any impediment preventing one of the representatives from continuing to conduct a procedure, then that party shall inform the authorities referred to under section 709(I) of the same Act of that fact so that the relevant legal proceeding may be initiated and the representative in question replaced. In this regard, according to the statistics, the JLCADF receives a large number of requests concerning strike notices; trade union registration; the updating of executive committees, statutes and lists of members; certification as the bargaining agent for collective labour agreements and registration of collective labour agreements. Such requests are transmitted by registered mail and are processed in accordance with the legal provisions currently in force. Consequently, the Government categorically denies that the allegations made by the complainant trade unions are true.
  37. 684. As to the allegation that the JLCADF refuses to issue certified copies and only issues the respective rulings after considerable delay, as well as transforming labour law from an instrument for the protection of the workers into an instrument for the protection of the employers, the Government states that the evidence submitted by the trade unions does not constitute proof that the JLCADF refused to issue certified copies, or that there were considerable delays in issuing rulings. Contrary to the evidence submitted by the complainants and in accordance with the provisions of section 723 of the Federal Labour Act, the committees are legally obliged to provide applicants with certified copies of any document or record in the relevant file. Moreover, the statements to the effect that the JLCADF issues rulings or awards after delays are generic and subjective, given that no specific cases are cited which might show that such delays occur, neither has any proof been provided to support such claims. It should be pointed out that on occasions when documents are submitted which are irreceivable by the authority, the JLCADF, in accordance with the Federal Labour Act, must rely on other judicial or administrative authorities to clarify the facts or the situation regarding the documents so that it may be in a position to guarantee the rights of the workers. Therefore, the Government categorically denies that the JLCADF is acting in bad faith or dishonestly with regard to the requests submitted by the complainant trade unions or any other body, given that it has not been proved that the JLCADF has acted in a partisan manner regarding any of the procedures it has carried out. By way of proof that the JLCADF is acting in good faith, the Government provides the following update regarding notices, the deposit of collective agreements, requests for certification as the bargaining agent for collective agreements, as well as various procedures involving the trade unions registered by Luis Cuadra Bermúdez, Ana Luisa Cuadra Andrade, Miguel Ángel Cuadra Andrade, Rogelio Quiroga Calderón, Raúl and José Magaña Córdova, Luis Ángel Palancares López, Esteban Sarabia and Margarita Espinoza (signatories to the complaint):
  38. – with regard to file No 563/2009, submitted by the Trade Union of Workers and Employees of the Wood, Paper and Cardboard Processing Industry, the Graphic Arts, Upholstery, Carpentry, Woodwork and Similar and Related Industries of the Federal District (General Secretary: Mr Luis Cuadra Bermúdez) on 1 April 2009, concerning the signing of an agreement, which was not processed, an agreement (established in accordance with section 923 of the Federal Labour Act) had already been signed with the enterprise in question (Cartones y Tubos del Sur SA de CV);
  39. – as to file No. 1070/2009, submitted by the Trade Union of Workers and Employees of the General Plastics, Chemicals, Ceramics, Synthetic Pastes, Rubber, Pottery and Glass, Similar and Related Industries of the Federal District (General Secretary: Mrs Ana Luisa Cuadra Andrade) regarding the signing of an agreement, this file is currently being processed;
  40. – Mr Luis Cuadra Bermúdez, Ana Luisa Cuadra Andrade and Miguel Ángel Cuadra Andrade have registered 124 collective labour agreements with various trade unions in which they are named as general secretaries. They have also submitted various requests for certification as the bargaining agent for collective agreements;
  41. – Mr Rogelio Quiroga Calderón, General Secretary of the Dr Luis Donaldo Colosio Murrieta Trade Union Front, has deposited a collective labour agreement;
  42. – Mr Raúl Magaña Córdova registered the Trade Union of Workers of Garages, Ironworks, Aluminium, Ornamental Metalwork and Metal Industries of the Federal District and has several ongoing strike notices. On some occasions he appears as General Secretary, while on others he is named as an agent, including in files Nos 843/2009, 775/2009, 1201/2009 and 1197/2009;
  43. – Mr Ricardo Magaña Alvarado registered the Trade Union Association of Workers of the General Dressmaking and Similar Industries of the Federal District and has deposited 22 collective labour agreements and appears either as General Secretary or agent in the notices. He is involved in files Nos 756/2006, 2591/2007, 1197/2009, 1201/2009, 775/2009 and 843/2009;
  44. – Mr Esteban Sarabia is involved in the affairs of several trade unions, for which he has deposited 44 collective labour agreements; and
  45. – Mrs Margarita Martínez Espinoza has deposited seven collective labour agreements with the committee on behalf of her registered group.
  46. 685. The Government states that the above information shows that the requests submitted to the JLCADF by the complainant trade unions have been dealt with in accordance with the national and international labour law in force and that, as a consequence, the complainants’ claims are groundless.
  47. 686. Finally, the Government wishes to share the following conclusions: (1) the complaint lodged does not comply with paragraph 82(a) and (b) of the Handbook of procedures, or with paragraph 31 of the Procedures, given that the complainant trade unions do not provide sufficient proof to support the allegations of violation of freedom of association; (2) the written complaint does not contain any reference to applicable international conventions or provisions which might have been violated; (3) none of the trade unions signatory to the complaint have shown that their trade union rights were affected, nor is there any reference to specific violations of freedom of association, as has been shown; (4) the documents submitted by the complainant trade unions show that the statements made are groundless, given that the complainants themselves demonstrate that the JLCADF granted the acknowledgements requested and has processed the requests submitted, fulfilling the relevant legal requirements, and therefore the claims that the JLCADF refuses to grant such acknowledgements or to receive requests are groundless; (5) neither is it true that the JLCADF imposed non-statutory requirements concerning the processing of strike notices, nor that the rulings were issued following considerable delay – indeed this has been shown not to be the case; (6) the JLCADF, contrary to the claims of the complainants, has shown that it has processed the requests made by the complainant trade unions regarding strike notices, the registration of trade unions, the updating of executive committees, statutes and lists of members, certification as the bargaining agent for collective labour agreements and registration of collective agreements, and; (7) as can be seen from the above information, the requests made to the JLCADF by the complainants have been dealt with in accordance with the provisions of the national and international labour legislation in force. Therefore, the Government requests the Committee on Freedom of Association to reject the present complaint.

C. The Committee’s conclusions

C. The Committee’s conclusions
  1. 687. The Committee observes that, in the present case, the complainant organizations firstly allege that the Office of the Clerk of the Local Conciliation and Arbitration Committee of the Federal District (JLCADF) refuses to receive requests for trade union registration, strike notices, documents updating statutes and lists of members, requests for certification as the bargaining agent for collective agreements and other collective issues, forcing trade unions to use registered mail with receipt of delivery or other means.
  2. 688. The Committee notes the Government’s argument that the complaint is irreceivable, citing a lack both of proof and of direct interest on the part of the complainant organizations. The Committee wishes to highlight, however, that the present complaint is written, dated and signed by authorized trade union officials and that it refers to the violation of trade union rights. The Committee stresses that it is not always easy or possible to provide proof for all types of allegations and that it is the evaluation of the proof submitted that is decisive (a process carried out when the Committee examines the case), and that direct interest in terms of receivability is always assumed when, as in the present complaint, the complainant organizations allege widespread non-compliance with legislation concerning freedom of association. Finally, the Committee observes that the complainant organizations transcribe examples of case law which, in their opinion, have been disregarded and send a number of annexes supporting their allegations.
  3. 689. The Committee notes the Government’s statements concerning the allegations, to the effect that: (1) the evidence submitted by the complainant trade unions does not prove that such claims are accurate, given that no proof was provided showing that the Office of the Clerk of the JLCADF refused to receive documents, nor that only documents originating from trade unions allegedly inclined to support the JLCADF are received; (2) there is no evidence to support the complainants’ claims that they were obliged to use registered mail with receipt of delivery or other means in order to send documents related to the registration of trade unions, strike notices or collective agreements to the JLCADF, such claims therefore being subjective and baseless; (3) when issuing rulings, the JLCADF complies with the legal provisions and therefore all the claims made in the complaint are groundless. Requests for trade union registration which met the statutory requirements were granted within the time frame set out by law, as was the case with the trade union registrations granted by the JLCADF to Luis Cuadra Bermúdez, Miguel Ángel Cuadra Andrade and Ana Luisa Cuadra Andrade, signatories to the complaint (the Government refers to five registration processes, as well as to a further registration process currently under way).
  4. 690. The Committee notes the allegation made by the complainant organizations that, with regard to requests for the signing of a collective agreement through a strike notice, in practice, the JLCADF requires proof that the workers actually belong to the trade union in question, as well as the names of those workers in the service of the employer in question. Furthermore, this information must be backed up by documents such as those proving registration with the Mexican Social Security Institute (IMSS), or other documents. As a result, if the employer refuses to provide documentation proving the existence of a labour relationship, then the right to strike is rendered ineffectual. The Committee notes that, according to the complainant organizations, in practice, the JLCADF delays processing of requests beyond the 48-hour time period set under the Federal Labour Act, section 921 of which states that the relevant Conciliation and Arbitration Committee shall deliver a copy of the list of claims with strike notice to the employer within 48 hours of receiving it.
  5. 691. The complainant organizations state that the delays affecting the 48-hour time period allow the employer to deposit an “employer protection collective agreement”, signed with another trade union, enabling him/her to disregard the strike notice issued by the most representative trade union and avoid having to comply with an authentic collective agreement. Furthermore, the JLCADF favours the processing of strike notices submitted by unrepresentative or extortive trade unions.
  6. 692. The Committee notes the Government’s statements to the effect that: (1) The complainant trade unions’ statements are subjective, given that the trade unions provide no proof to support their arguments or claims. Moreover, they make generic statements, failing to provide details regarding the non-statutory requirements allegedly introduced by the JLCADF: (2) Mexican law does not make provision for “employer protection collective agreements”, given that the workers are free to band together to defend their common interests and can establish independent trade unions free of employer interference. Each trade union is free to establish itself, request registration, draw up statutes and regulate its own administration and internal affairs. (3) The conciliation and arbitration committees do not assist employers in cases where strike notices have been issued by trade unions. The committees are tripartite bodies, including employers, workers and government, and thus responsibility in terms of decision-making is shared out equitably. (4) In the unlikely event of a complainant trade union organization, or any other organization, detecting a conflict of interests regarding a Committee representative involved in dealing with a specific matter or case, that trade union or organization has the right to request that that representative desist from conducting the procedure in question (section 710 of the Federal Labour Act). (5) According to the statistics, the JLCADF has received a large number of files corresponding to strike notices, requests for trade union registration, the updating of executive committees, statutes and lists of members, certification as the bargaining agent for collective labour agreements and collective labour agreements.
  7. (6) Requests regarding collective issues received by registered mail are processed and granted in accordance with the legal provisions currently in force. Consequently, the Government categorically denies that the allegations made by the complainant trade unions are true.
  8. 693. The Committee notes that the complainant organizations allege that the JLCADF arbitrarily refuses to issue certified copies of trade union statutes or acknowledgements of trade union executive committees, or limits itself to issuing two or five copies, thus contravening the relevant legislation. The Committee also notes the allegation made by the complainant organizations to the effect that when a trade union submits a request to the JLCADF for the withdrawal of bargaining agent status for collective agreements from another trade union which no longer represents the majority of the workers, the JLCADF requires proof of the trade union membership of the workers and of their labour relationship with the employer in question. According to the complainant organizations, the workers’ names find their way back to the employer and the workers are dismissed. The complainant organizations go on to claim that these procedures are affected by considerable delays, a problem also affecting other procedures, such as the issuing of acknowledgements regarding changes affecting executive committees.
  9. 694. The Committee notes the Government’s statements to the effect that: (1) the allegation that the JLCADF refuses to issue certified copies, as well as issuing rulings after considerable delays and transforming labour law from an instrument for the protection of the workers into an instrument for the protection of the employers is untrue; (2) the trade unions offer no real evidence to support their claims regarding the refusal to issue copies and delays affecting rulings. Contrary to the evidence submitted by the complainants and in accordance with the provisions of section 723 of the Federal Labour Act, conciliation and arbitration committees are legally obliged to provide applicants with certified copies of any document or record in the relevant file; (3) the statements to the effect that the JLCADF issues rulings or awards after delays are generic and subjective, given that no specific cases are cited which might show that such delays occur, nor has any proof been provided to support such claims; (4) on occasions when documents are submitted which are irreceivable by the authority, the JLCADF, in accordance with the Federal Labour Act, must rely on other judicial or administrative authorities to clarify the facts or the situation regarding the documents so that it may be in a position to guarantee the rights of the workers, and; (5) the JLCADF is not acting in bad faith or dishonestly with regard to the requests submitted by the complainant trade unions or any other body, given that it has not been proved that the JLCADF has acted in a partisan manner regarding any of the procedures it has carried out. The Committee notes that the Government backs up its statements by referring to the current situation regarding notices, the deposit of collective agreements, requests for certification as the bargaining agent for collective agreements, as well as various procedures involving the trade unions registered by those trade union officials who signed the complaint before the Committee:
    • – With regards file No. 563/2009, submitted by the Trade Union of Workers and Employees of the Wood, Paper and Cardboard Processing Industry, the Graphic Arts, Upholstery, Carpentry, Woodwork and Similar and Related Industries of the Federal District (Secretary General: Mr Luis Cuadra Bermúdez) on 1 April 2009, concerning the signing of an agreement, which was not processed, an agreement (established in accordance with section 923 of the Federal Labour Act) had already been signed with the enterprise in question (Cartones y Tubos del Sur SA de C.V.);
    • – As to file No. 1070/2009, submitted by the Trade Union of Workers and Employees of the General Plastics, Chemicals, Ceramics, Synthetic Pastes, Rubber, Pottery and Glass, Similar and Related Industries of the Federal District (General Secretary: Mrs Ana Luisa Cuadra Andrade) regarding the signing of an agreement, this file is currently being processed;
    • – Mr Luis Cuadra Bermúdez, Ana Luisa Cuadra Andrade and Miguel Ángel Cuadra Andrade have registered 124 collective labour agreements with various trade unions in which they are named as the general secretaries. They have also submitted various requests for certification as the bargaining agent for collective agreements;
    • – Mr Rogelio Quiroga Calderón, General Secretary of the Dr Luis Donaldo Colosio Murrieta Trade Union Front, has deposited a collective labour agreement;
    • – Mr Raúl Magaña Córdova registered the Trade Union of Workers of Garages, Ironworks, Aluminium, Ornamental Metalwork and Metal Industries of the Federal District and has several ongoing strike notices. On some occasions he appears as General Secretary, while on others he is named as an agent, including in the files Nos 843/2009, 775/2009, 1201/2009 and 1197/2009;
    • – Mr Ricardo Magaña Alvarado registered the Trade Union Association of Workers of the General Dressmaking and Similar Industries of the Federal District and has deposited 22 collective labour agreements and appears either as General Secretary or agent in the notices. He is involved in files Nos 756/2006, 2591/2007, 1197/2009, 1201/2009, 775/2009 and 843/2009;
    • – Mr Esteban Sarabia is involved in the affairs of several trade unions, for which he has deposited 44 collective labour agreements; and
    • – Mrs Margarita Martínez Espinoza has deposited seven collective labour agreements with the JLCADF on behalf of her registered group.
  10. 695. The Committee notes the Government’s statement to the effect that the above information shows that the requests submitted to the JLCADF by the complainant trade unions have been dealt with in accordance with the national and international labour law in force and that, as a consequence, the complainants’ claims are groundless.
  11. 696. The Committee wishes to point out that the issue of “employer protection collective agreements” referred to in the allegations arose in a previous case (No. 2694), which will be examined at a later meeting, given that the Government claimed that the complaint was irreceivable, for which reason its examination was delayed.
  12. 697. In general, with regard to the Government’s statement to the effect that the complainant organizations have failed to provide sufficient proof of violations of trade union rights, the Committee observes that certain elements of proof (although limited in nature) have been provided; in particular, the annexes sent by the complainant organizations contain various communications of 1995, 2004, 2005 and 2006 of the JLCADF, in which the JLCADF “takes note” of (registers) the updated executive committees and lists of members of various trade unions. Consequently, it would seem that for official acknowledgement to be obtained the list of members of the trade union must first be submitted. The Committee recalls that the list of members of a trade union given for registration purposes should be kept confidential in order to prevent acts of trade union discrimination. Furthermore, according to the complainant organization, under case law, the processing of strike notices regarding the signing of a collective labour agreement cannot be conditional upon the trade union providing proof that those workers involved in the strike notice are members of said trade union. In this regard, the complainant organization sends a communication from the JLCADF stating that one of the names on the list of workers provided by the executive committee does not appear on the register of the IMSS and giving the trade union in question three days to provide an explanation, with failure to do so leading to the file being shelved. Alternatively, the JLCADF requests the trade union to provide proof of the existence of the labour relationship of the workers it claims to represent.
  13. 698. However, the Committee observes that the complainant organizations have not provided sufficient proof regarding the alleged considerable delays concerning the processing by the authorities of documents linked to the exercise of trade union rights.
  14. 699. Taking into account the contradiction existing between the allegations and the Government’s reply, as well as the previously mentioned annexes which contain certain elements of proof (albeit limited), regarding a number of alleged non-statutory requirements for the exercise of trade union rights, the Committee invites the Government to promote dialogue between the complainant organizations and the JLCADF to deal with the question of the functioning of the procedures and the concerns expressed by said organizations.

The Committee's recommendations

The Committee's recommendations
  1. 700. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
    • The Committee invites the Government to promote dialogue between the complainant organizations and the JLCADF to deal with the question of the functioning of the existing procedures and the concerns expressed by the said organizations.
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