Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 370, Octubre 2013

Caso núm. 2973 (México) - Fecha de presentación de la queja:: 08-MAR-12 - Cerrado

Allegations: The complainant organization alleges obstacles to accessing educational institutions faced by the organization’s representatives

1. 568. The complaint is contained in a communication of the Legitimate Academic Workers’ Union of CONALEP in the State of Jalisco (SILTACEJ) dated 8 March 2012. The National Federation of Academic Trade Unions of CONALEP (FENSACONALEP) supported the complaint in a communication dated 26 July 2012.
2. 569. The Government sent its observations in a communication dated 17 June 2013 and in a communication received at the Office on 8 October 2013.
3. 570. Mexico has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Workers’ Representatives Convention, 1971 (No. 135), but has not ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 571. In a communication dated 8 March 2012, SILTACEJ alleges that access has been denied to its representatives to the educational establishments of the National Technical Vocational Training College (CONALEP), which is a decentralized public body. Furthermore, CONALEP education authorities have stated that they will refuse entry to campuses, arguing that there is no explicit legal requirement to allow free access to its facilities.
2. 572. SILTACEJ explains that on 10 March 2010, when the State administration and the various CONALEP colleges received official notification of its union registration, the United Trade Union of Academic Workers of CONALEP of the State of Jalisco (SUTACEJ), which is party to the collective agreement, forcibly prevented it from entering the Mexican/Italian college located in Zapopan, State of Jalisco.
3. 573. The complainant adds that, at the meeting held with the then principal of CONALEP Jalisco on 18 March 2010, the latter stated that he would not grant the trade union access to CONALEP campuses, reportedly arguing that a signed collective agreement was already in place. In response to the request made on 14 June 2010, the principal of CONALEP Jalisco wrote to SILTACEJ, reiterating that its union representatives would not be granted access to the colleges, basing his decision on the alleged lack of an explicit legal requirement to grant free access to CONALEP campuses in the State. On 7 December 2010, a meeting was held with the new State principal of CONALEP Jalisco, who reiterated his predecessor’s refusal. Consequently, on 21 September 2010, the complainant made a request for labour arbitration (ordinary procedure) to the Local Conciliation and Arbitration Board of the State of Jalisco, which was dismissed on 14 October 2011. The complainant filed direct amparo (protection of constitutional rights) proceedings against the final award, and a decision is still pending.
4. 574. The complainant also alleges that on 17 November 2011, 17 January and 2 February 2012 it requested the Governor of the State of Jalisco to intervene to resolve the dispute and that no reply has been received to date. The Secretary of State for the State of Jalisco was also contacted on 15 February 2012. Round table discussions took place on 22 February 2010 with staff from the Office of the Undersecretary for Internal Affairs of the Government of the aforementioned State, following which the complainant organization was asked to be granted a period of two weeks, but this period expired with no solution forthcoming.

B. The Government’s reply

1. 575. In its communication of 12 June 2013, concerning the allegation made that staff of SUTACEJ have barred entry to members of SILTACEJ, the Government reports that the Secretary-General of SUTACEJ has stated that its organization respects the international treaties signed and ratified by the Government of Mexico; that it is party to the collective agreement concluded with CONALEP of Jalisco; that it has 1,000 workers duly affiliated and employed in this institution; and that none of the staff members affiliated to the union known as SILTACEJ are employed in the aforementioned institution.
2. 576. With regard to the alleged denial of access to SILTACEJ to the various campuses belonging to CONALEP Jalisco to disseminate information to workers in the colleges, the Government emphasizes that the State General Directorate of CONALEP of the State of Jalisco has informed it that, as indicated in the complaint to the Committee on Freedom of Association, SILTACEJ obtained its union registration following the proper procedure and via the competent authorities, a state of affairs that CONALEP of Jalisco has in no way or under no circumstances failed to acknowledge. The Government also emphasizes that the institution has stated that, it is free to deny access to anyone whose business is not directly connected to college professional activities, in order to protect the safety and security of the persons who, as teachers, students and administrative workers, are present on campus on a daily basis. Thus, it is incorrect to claim that CONALEP of Jalisco, in fulfilling these obligations, is violating the trade union right in question. In other words, CONALEP of Jalisco has certainly not prevented SILTACEJ from taking steps to raise awareness of its trade union organization programme. Incidentally, no legal provision stipulates that this activity should be carried out within educational establishments and during teaching hours; it can be carried out using a different approach that does not interfere with the normal functions of the colleges.
3. 577. Furthermore, the Government states that, on 16 November 2011, SILTACEJ filed direct amparo proceedings against the Local Conciliation and Arbitration Board’s award of 14 October 2011. The original file was forwarded to the Collegiate Labour Tribunal of the Third Circuit and, in line with the duty rota, the appeal was then referred to the First Collegiate Labour Tribunal of the Third Circuit, but a recent communication from the Third Collegiate Labour Tribunal of the Third Circuit reports that one of the judges made a request to be excused, on grounds that he was being prevented from issuing a ruling on the amparo proceedings filed. The First Tribunal ordered the file to be referred to the Third Collegiate Tribunal; the request was found to be justified and another official was appointed to replace the judge who had been excused. No information has been received to date on whether an amparo ruling has been issued.
4. 578. With respect to the list of demands submitted to the various Jalisco State authorities, requesting their intervention to resolve the trade union dispute explained in the foregoing paragraphs, the Government reports that the Jalisco State Government noted that, on 6 December 2011, the Jalisco Ministry of Education’s Director-General of Higher Intermediate Education responded to the Secretary-General of the complainant organization, pointing out that, as CONALEP is a decentralized public body, the list should be submitted to the campus director for his due consideration of the issues raised with the Governor. The State Government also noted that neither the State Governor nor the Government’s Secretary of State are authorized to address and resolve the complaint lodged by the Secretary-General of SILTACEJ in the State of Jalisco, since Decree No. 18026 published on 2 November 1999 establishes the decentralized public body known as the Technical Vocational Training College of the State of Jalisco with its own legal personality and assets ... and that, in light of the above, the trade union should refer to the governing board of the aforementioned college for its advice and guidance on resolving the dispute with the trade union.
5. 579. The Government concludes that: (1) from its analysis of the complaint, no violations of Convention No. 87, or of the rights enshrined therein, are apparent because the right to freedom of association has been respected, as clearly shown through the granting of legal recognition to the complainant trade union by the Local Conciliation and Arbitration Board of the State of Jalisco; (2) neither is there any evidence that the authorities have prevented SILTACEJ from drawing up its constitution and rules, electing its representatives in full freedom, organizing its internal administration and activities, or formulating its programmes; (3) there is no evidence of any violation of Convention No. 135, since the information provided by SUTACEJ notes that neither the Secretary-General of SILTACEJ nor its executive committee belong to the workforce of that institution; and (4) it appears that CONALEP in Jalisco has not prevented SILTACEJ from taking steps to raise awareness of its trade union organization programme, which could be carried out without interfering with the normal functions of the colleges, and that access to the colleges was denied to protect the safety and security of the persons who, as teachers, students and administrative workers, are present on campus.
6. 580. In a communication received on 8 October 2013, the Government states that on 14 December 2012 the Third Collegiate Labour Tribunal of the Third Circuit approved the amparo appeal on the grounds that the authority responsible had to cancel the ruling challenged by the appeal and replace it with a new ruling which, irrespective of the fact that there is no law or standard granting the right demanded by the complainant union and regardless of the ILO’s suggestions in the Workers’ Representatives Recommendation, 1971 (No. 143), concerning the facilities to be granted to workers’ representatives, determines the manner in which these facilities must be granted so that the minority union can express itself and enter the campuses of the educational establishment, as well as the conditions for informing the workers of its programme of action, according to the circumstances of the case in question, while ensuring the smooth and effective functioning of the colleges and with account taken of the respective characteristics of the worker–employer system.
7. 581. The Government adds that on 15 February 2013, in accordance with direct amparo Order No. 319/2012, the Jalisco Conciliation and Arbitration Board issued a second ruling resulting from the SILTACEJ action ordering CONALEP Jalisco to:
   • Authorize access to each of the college campuses for SILTACEJ representatives, not only union members but also members of the union’s executive committee, whether or not the latter were workers at the college, so that they would be able to perform their representative functions, promote their trade union platform to the workers and have the use of a space enabling the union to participate as an alternative organization at the workplace, and also to ensure that no measure interferes with its effective functioning, since it is the general source of information for the workers, enabling them to discuss the best options regarding the unions.
   • Enable the union representatives to communicate with the management of the enterprise to the extent necessary for the effective performance of their functions.
   • Authorize the workers’ representatives who act on behalf of the union to display union notices on the enterprise premises in places fixed by joint agreement with the management and easily accessible by the workers, and to distribute bulletins, notices, publications and other union documents to the workers in the enterprise.
   • The abovementioned measures must be implemented in such a way as not to obstruct the normal functioning of the enterprise or the campuses.
8. 582. Further to this decision, the other trade union (SUTACEJ) filed a number of appeals and is awaiting the outcome of its application for judicial review.

C. The Committee’s conclusions

1. 583. The Committee notes that this case refers to allegations of the denial of entry to the educational establishments of CONALEP, located in the State of Jalisco, to representatives of SILTACEJ. The complainant reports that, on the one hand, another trade union SUTACEJ prevented it from entering and that, on the other hand, CONALEP Jalisco management stated on two occasions that it will not grant SILTACEJ access.
2. 584. The Committee takes note of the Government’s statement that: (1) SUTACEJ is party to the collective agreement concluded with CONALEP in Jalisco and that it has almost 1,000 workers duly affiliated and employed in this institution and, according to SUTACEJ, no workers affiliated to SILTACEJ are employed in CONALEP of the State of Jalisco; (2) there is no evidence of any violation of Convention No. 135, as neither the Secretary-General of SILTACEJ nor the members of the union’s executive committee belong to the workforce of that institution; (3) SILTACEJ (which obtained its union registration) has not been prevented from carrying out its activities, in so far as these do not interfere with the normal functions of the college; (4) the authorities have not prevented SILTACEJ from exercising the rights enshrined in Convention No. 87; and (5) CONALEP is open to the complainant trade union raising awareness of its plan of action using approaches that do not interfere with the normal functions of the colleges.
3. 585. The Committee notes with interest the Government’s indication that the direct amparo appeal filed by the complainant organization on 16 November 2011 and submitted to the Third Collegiate Labour Tribunal of the Third Circuit resulted in a decision in favour of the organization, further to which the Jalisco Conciliation and Arbitration Board handed down a ruling ordering CONALEP to take a set of measures guaranteeing that the complainant organization and its representatives would have access to the various campuses of CONALEP and would have the possibility of communicating with the management, displaying trade union notices and distributing documents. The Committee observes that this decision was the subject of an application for judicial review from the other trade union (SUTACEJ) and this is still pending.
4. 586. The Committee requests the Government to keep it informed of the outcome of the application for judicial review filed by SUTACEJ.

The Committee’s recommendation

1. 587. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee requests the Government to keep it informed of the outcome of the application for judicial review filed by SUTACEJ.