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Effect given to the recommendations of the committee and the Governing Body
Effect given to the recommendations of the committee and the Governing Body- 24. The Committee last considered this case, concerning various
allegations of specific situations relating to the use of protection contracts, at its
October 2018 meeting [see 387th Report, paras 26–34]. On that occasion, the Committee
made the following recommendations [see 387th Report, paras 31–34]:
- (a) The
Committee invites the complainant to send the additional information at its disposal
in relation to these allegations regarding the phenomenon of protection unions and
protection agreements, and requests the Government to review with the organizations
in question the issues that could remain with a view to conducting the relevant
additional investigations and taking the necessary measures to ensure full respect
for the principles of freedom of association and collective bargaining. The
Committee requests the Government to keep it informed in this respect.
- (b)
The Committee invites the Government to consider the possibility of consulting the
most representative workers’ and employers’ organizations and the national
organizations that have supported this complaint with regard to the functioning of
the protocol on free collective bargaining. The Committee requests the Government to
keep it informed in this regard and indicate whether, as a result of the application
of the protocol, protection unions and protection agreements have been identified
and, if so, what measures have been taken.
- (c) Expressing its concern at the
seriousness of some of the additional allegations presented by IndustriALL –
particularly the murders of trade unionists – the Committee requests the Government
to conduct the necessary investigations and provide its observations in that
respect.
- (d) The Committee trusts that in the development and implementation
of the constitutional reform and its secondary legislation, in consultation with the
most representative workers’ and employers’ organizations, and the national
organizations that have supported this complaint, all the necessary measures will be
taken to address the different dimensions of the problem of protection agreements
and protection unions that have been presented in this case.
- 25. In a communication dated 28 October 2020, IndustriALL Global Union
(hereinafter IndustriALL, formerly the International Metalworkers’ Federation), submits
additional information in relation to some of the Committee’s recommendations, as well
as new allegations. In general, IndustriALL states that, despite changes in government,
most of the cases exposed through this complaint remain unresolved, without
acknowledgement of the facts and without response from the Government, implying
widespread impunity.
- 26. With regard to five specific situations concerning the Honda Mexico
United Workers’ Union (STUHM), the Commercial, Office, Retail, Similar and Allied
Workers’ Union (STRACC), the National Union of Petroleum Technicians and Professionals
(UNTyPP), the first car manufacturer , as well as the second car manufacturer
(recommendation a)), IndustriALL claims that it has not yet received an institutional or
legal response.
- 27. Regarding the STRACC, IndustriALL alleges that several transnational
companies in the energy sector continue to hire new staff through outsourcing companies
and affiliate them to a protection union in collusion with labour authorities. According
to IndustriALL, officials at the Mexico City Local Conciliation and Arbitration Board
(JLCACDMX) withhold information on collective bargaining agreements and union records,
and delay procedures to give employers time to leak data on STRACC members and dismiss
them. It refers in particular to a legal action to seek title brought by STRACC in June
2019 that was not dealt with by the JLCACDMX, leading to numerous dismissals.
- 28. Regarding the UNTyPP, IndustriALL claims that the oil company still
refuses to recognize it as an interlocutor and blocks any union activity in the
workplace. It also alleges that the oil company refuses to comply with the resolutions
of the Federal Conciliation and Arbitration Board to reinstate dismissed workers who
initiated the process of organizing the UNTyPP, as well as discriminating against those
it identifies as UNTyPP affiliates in its admission and promotion processes.
- 29. In terms of addressing the different dimensions of the issue of
protection contracts and unions through the development and implementation of
constitutional reform and its secondary legislation (recommendation (d)), IndustriALL
argues that, while changes are being made for labour law transformation, the control
groups of the employer protection collective contracting labour model are imposing
themselves at a faster pace, and trade unionists continue to be harassed, threatened and
dismissed. It alleges that influence peddling between officials and corporate lawyers
continues, and that trade union organizations close to the new actors in government are
being promoted.
- 30. IndustriALL also argues that while the new Federal Labour Act (LFT),
adopted on 1 May 2019, provides for sanctions against employers who interfere in trade
union life and repress the exercise of freedom of association, there is no mechanism for
this, nor measures to redress the harm suffered by those who are victims of repression,
and that much of the LFT is therefore unenforceable in practice.
- 31. IndustriALL further argues that, although the protocol for the legal
validation of existing collective agreements, issued on 31 July 2019, provides for the
obligation to consult workers to check whether they agree with their collective
bargaining agreements, the responsibility for legitimization lies with the incumbent
union and there have been several known cases of legitimization of a protection
contract.
- 32. Furthermore, according to IndustriALL, since the new Government came
to power, it has applied a policy of austerity without objective criteria, which has had
serious negative repercussions in the labour sphere, as the Ministry of Labour and
Social Security, the labour courts, the labour inspectorate and the prosecutor’s offices
do not have sufficient human and material resources to act. It affirms that the
employers’ sector is taking advantage of the transition stage and the weaknesses of the
State to consolidate protection contracts, using strategies such as hiring personnel
through outsourcing, employment agencies, false self-employment, simulation of labour
relations and temporary contracts, which results in a sustained process of labour
precariousness and the nullification of freedom of association.
- 33. IndustriALL adds that, while at the federal level, calls for the
positions of labour judges and staff of the Federal Labour Conciliation and Registration
Centre (CFCRL) are published, in the states this process is obscure and under the
control of the local executive power in collusion with regionally influential economic
groups, which maintain control of the bodies for the administration of justice, and for
union registration and updating. In general, IndustriALL states that despite legal
changes, the practice of protection contracts persists.
- 34. In addition, IndustriALL submits new allegations concerning other
situations relating to the use of trade unions and protection contracts and, in some
cases, acts of discrimination and anti-union violence that were committed as a result of
this issue. It alleges in particular: (i) the murder of Mr Santiago Rafael Cruz,
organizer of the Farm Labor Organizing Committee (AFL CIO), in Monterrey on 9 April
2007; (ii) the disappearance of Mr Oscar Hernández Romero, activist supporting the
National Union of Miners, Metalworkers and Allied Workers of the Republic of Mexico
(SNTMMSSRM) in its organization campaign at the Media Luna mine owned by Torex Gold
Resources, on 23 September 2009; (iii) the arbitrary arrest and detention of Mr Antonio
Bautista Crespo, General Secretary of the Union of Workers of State Powers,
Municipalities and Decentralized Bodies in Nayarit (SITEM), by members of the Attorney
General’s Office of the State of Nayarit on 2 October 2020; (iv) the signing of
protection contracts, anti-union dismissals, illegal recounts, acts of violence and
intimidation, and death threats by several enterprises in the mining sector between 2008
and 2019; (v) the signing of protection contracts, as well as acts of interference and
anti-union dismissals in the electricity sector between 2009 and 2020; (vi) the refusal
to bargain collectively, anti-union dismissals, acts of harassment and threats in the
media sector in 2017 and 2018; (vii) non-recognition of a trade union and acts of
anti-union interference in the health sector in 2019 and 2020; (viii) anti-union
dismissals, blacklisting, persecution of trade union leaders, as well as the
imprisonment of a trade union advisor for three weeks in June 2020 in the maquila
industry in the north of the country; (ix) the signing of protection contracts,
anti-union dismissals, forced resignations, illegal recounts, acts of violence,
intimidation and harassment, and an armed assault and attempted kidnapping in the rubber
industry between 2015 and 2019; (x) the signing of protection contracts by transnational
companies prior to the installation and operation of their workplaces in the wind energy
sector; (xi) acts of anti-union interference by the Mexico City government in favour of
protection unions; (xii) the non-recognition of a union and anti-union dismissals of
several of its members and leaders in the beverage industry between 2017 and 2019;
(xiii) the prevalence of employer protection collective bargaining, the use of
outsourcing agencies for anti-union purposes and blacklisting in the electronics
industry in Guadalajara; and (xiv) the administrative elimination of a union and its
replacement by a protection union in the education sector in the State of Tabasco in
June 2019.
- 35. In communications dated 12 November 2020, 28 October 2021 and 25
January 2024, the Government provides information on the measures taken to combat the
problem of protection contracts and unions through labour reform (recommendation (d)).
According to the Government, the allegations made by the complainant organizations in
the present case were addressed through this far-reaching transformation, which was
successfully implemented.
- 36. The Government indicates that the new labour model establishes the
obligation of trade unions to prove their representativeness before and at the end of
collective bargaining, as well as in the contractual reviews that must be carried out
every two years. It explains that such representativeness must be accredited before the
CFCRL, the body responsible for ensuring that the guarantees of a personal, free, secret
and direct vote of the workers have been complied with.
- 37. The Government also indicates that, in order to prevent contracts
signed under the rules of the past from being included in the new labour model, the
transitional regime of the reform included the obligation to review, within a period of
four years, all those contracts signed prior to 1 May 2019. It states that this review
is carried out through a legitimization process organized by the union holding the
contract and supervised by the labour authorities to prove that the workers are aware of
the contract and that they cast their personal, free, secret and direct vote under
peaceful conditions.
- 38. The Government also refers to other measures taken in the framework
of the reform, such as the adoption of effective dispute resolution mechanisms through a
pre-judicial conciliation body and expeditious jurisdictional processes by impartial and
autonomous labour courts, as well as the establishment of democratic rules for the
election of union leadership, and the establishment of transparency and accountability
mechanisms applicable to trade unions.
- 39. The Government points out that the legislative process by which the
2019 reform was approved was the product of a broad consensus between the Government and
the most representative workers’ and employers’ organizations, which were invited to
participate in the process through consultative forums in which the legislators of the
Chamber of Deputies and the Senate of the Republic listened to their opinions, as well
as those of specialists and academics.
- 40. The Government specifies that among those invited were
representatives of the complainant organizations in the present case, and that the
forums proved to be pluralistic, inclusive and transparent. The Government affirms that
this social dialogue has continued since then and has even been strengthened in recent
years, and expresses its willingness to enter into dialogue with IndustriALL on the
issues raised in this case.
- 41. The Committee takes due note of the information provided by
IndustriALL and the Government. With regard to the five specific situations concerning
the STUHM, the STRACC, the UNTyPP, the first car manufacturer and the second car
manufacturer (recommendation (a)), the Committee notes that IndustriALL states that: (i)
it has not yet received any institutional or legal response; (ii) in the case of the
STRACC, several transnational corporations continue to use protection unions with the
complicity of the labour authorities, and numerous members of the STRACC were dismissed
after the STRACC filed a legal action to seek title in June 2019; and (iii) in the case
of the UNTyPP, the oil company continues to refuse to recognize the UNTyPP as an
interlocutor and to comply with the reinstatement orders issued in favour of dismissed
workers who initiated its organizing process, and continues to discriminate against its
members. The Committee notes that the Government does not provide any information in
relation to the five situations mentioned above but expresses its willingness to enter
into dialogue with IndustriALL on the issues that are the subject of the present case.
The Committee once again requests the Government to review with the organizations
concerned the matters still pending in relation to the specific situations raised with
respect to the STUHM, the STRACC, the UNTyPP, the first car manufacturer and the second
car manufacturer, with a view to carrying out further investigations as appropriate and
taking the necessary measures to ensure full respect for the principles of freedom of
association and collective bargaining. The Committee requests the Government to keep it
informed in this respect and reminds it that it may, if it so wishes, avail itself of
the technical assistance of the Office.
- 42. With regard to the application of the protocol on free collective
bargaining (recommendation (b)), the Committee notes, on the basis of publicly available
information, that the labour reform is fully in force and that the new regulations,
including the General Guidelines for Trade Union Democracy Procedures issued on 17
August 2022, are already applicable. Noting that this issue is also followed by the
Committee of Experts on the Application of Conventions and Recommendations (CEACR), the
Committee trusts that these regulations will ensure the application of the principles of
freedom of association and collective bargaining in law and in practice. In these
circumstances, the Committee will not pursue the examination of this aspect of the
case.
- 43. As regards the additional allegations made by IndustriALL in 2018
(recommendation (c)), the Committee notes that they are not addressed in the
Government’s communications. The Committee also notes that IndustriALL, in its 2020
communication, alleges further violations of the principles of freedom of association
and collective bargaining through the practice of protection contracts, as well as acts
of anti-union discrimination and violence that would be closely linked to this issue, in
several sectors. While noting that some of the facts referred to date back to 2007, the
Committee expresses great concern at the seriousness of some of the alleged facts, which
include the murder of trade unionists, the disappearance of a trade union activist, the
imprisonment of trade union leaders, an attempted kidnapping and death threats. In this
regard, the Committee recalls that freedom of association can only be exercised in
conditions in which fundamental rights, and in particular those relating to human life
and personal safety, are fully respected and guaranteed, and that a genuinely free and
independent trade union movement cannot develop in a climate of violence and uncertainty
[see Compilation of decisions of the Committee on Freedom of Association, sixth edition,
2018, paras 82 and 86]. With a view to ensuring that violence against trade unionists
does not go unpunished, the Committee urges the Government to carry out the necessary
investigations and provide its observations on the additional allegations made by
IndustriALL in 2018 and 2020, including in particular the murders of Messrs Javier
García Salinas, leader of the Union of workers of the “Union and Strength” Heroic Body
of Firefighters of Mexico City, Víctor Sahuanitla Peña and Marcelino Sahuanitla Peña,
members of SNTMMSSRM, Quintín Salgado, leader of the SNTMMSSRM, and Santiago Rafael
Cruz, organizer of the AFL-CIO, the disappearance of Mr Oscar Hernández Romero, trade
union activist, as well as the arbitrary detention of Mr Antonio Bautista Crespo,
General Secretary of the SITEM.
- 44. With regard to addressing the different dimensions of the problem of
protection contracts and unions through the development and implementation of the
constitutional reform and its secondary legislation (recommendation (d)), the Committee
notes that, according to IndustriALL: (i) despite the legal changes being made, the
control groups of the protective collective contracting model are imposing themselves
more rapidly, and trade unionists continue to be harassed, threatened and dismissed;
(ii) while the LFT provides for sanctions against acts of anti-union interference, there
is no mechanism for this, nor redress measures, so that much of the LFT is unenforceable
in practice; (iii) several protection contracts have been legitimized through the
process established in the Protocol for the legal validation of existing collective
agreements; and (iv) the austerity policy of the new Government has allowed the
employers’ sector to take advantage of the lack of resources of the labour authorities
to consolidate protection contracts through strategies of labour precariousness.
- 45. The Committee notes that the Government, for its part, indicates
that: (i) the allegations in the present case were addressed through various measures
adopted in the framework of the labour reform, which was successfully implemented; (ii)
the legislative process through which the reform was adopted was the product of a broad
consensus between the Government and the most representative social partners; and (iii)
the complainant organizations in this case were among the organizations invited to
participate in the consultative forums on the reform.
- 46. While welcoming the measures taken by the Government, the Committee
also notes that IndustriALL alleges that the problem of protection contracts and trade
unions remains and that there are gaps in the practical application of the reform,
referring specifically to the lack of a mechanism to implement the provisions protecting
against acts of anti-union discrimination and interference in the LFT, and to the
legitimization of several protection contracts through the Protocol for the legal
validation of existing collective agreements. Recalling that the legislative aspects of
the present case were brought to the attention of the CEACR, the Committee encourages
the Government to take steps, in consultation with the social partners, to address the
above-mentioned issues, and requests it to inform the CEACR of any developments in this
respect. In view of the above, the Committee will not pursue the examination of these
matters.
