Rapport intérimaire - Rapport No. 324, Mars 2001

Cas no 2013 (Mexique) - Date de la plainte: 18-FÉVR.-99 - Clos

Allegations: Refusal to register an organization, acts of interference and anti-union discrimination by the employer

1. 685. The Committee examined this case at its March 2000 meeting and submitted an interim report to the Governing Body [see 320th Report, paras. 723 to 734, approved by the Governing Body at its 277th Session (March 2000)].
2. 686. The Government sent further observations in communications dated 24 May 2000.
3. 687. 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. Previous examination of the case

1. 688. In its previous examination of the case, the Committee formulated the following conclusions and recommendations [see 320th Report, paras. 728 to 734]:
   • The Committee notes that the questions raised by the complainant teachers' organization relate to the following: (1) the refusal to register SINTACONALEP since its establishment on 2 February 1997; and (2) acts of interference and discrimination against the members of this organization by the National College of Technical Occupational Education (CONALEP).
   • The complainant explains that the General Directorate's pretext for refusing the registration is the absence of an employment relationship between the members of the group concerned and the National College of Technical Occupational Education, meaning that the members of this group are not workers in the meaning of the Federal Labour Act. The complainant states that, according to the General Directorate, inspections carried out with the employers' legal representatives showed that while none of the members of this group were recognized as workers within the meaning of the abovementioned Act, some members were recognized as providers of occupational services, as they had signed contracts for the provision of occupational services. It was therefore deduced that their relationship was of a strictly civil nature and did not constitute an employment relationship. SINTACONALEP maintains that it fulfils the legal conditions as demonstrated by its trade union statutes, the fact that its initial request related to 220 workers and that it submitted the documents required under section 365 of the Federal Labour Act. According to SINTACONALEP, the General Directorate took a negative decision as a delaying tactic, acting in bad faith and looking for arguments to support the illegal refusal to register. The Committee notes that, according to SINTACONALEP, having invented one cause for incompetence which was rejected by the higher bodies, the General Directorate went on to invent further requirements, such as having to prove the employment relationship, which is stipulated in neither the Constitution nor the Federal Labour Act.
   • The Committee notes that, according to the Government, the refusal to register SINTACONALEP is in accordance with the legal provisions in force in Mexico and with ILO Conventions, an interpretation that was in fact confirmed by two courts, thus definitively settling this question.
   • The Committee recalls that "by virtue of the principles of freedom of association, all workers - with the sole exception of members of the armed forces and police - should have the right to establish and to join organizations of their own choosing". Nevertheless, in order to draw conclusions on all the elements of information, the Committee requests the Government to transmit the most detailed information on: (1) the manner in which an unregistered organization may defend and promote effectively the interests of its members and carry out activities; and (2) the applicable legislation and whether it sets forth the denial of registration and on what basis.
   • With respect to the acts of interference and the acts of discrimination against the members of SINTACONALEP by CONALEP, the Committee notes that the Government gives no response to the complainant's allegations. The Committee also notes that, according to SINTACONALEP, CONALEP's position was to make employment conditional upon the workers' rejection of the trade union, forcing the workers to sign letters of resignation which were sent to the authorities. Furthermore, many members of SINTACONALEP were dismissed, and the procedures for unjustified dismissal lodged by its members have been delayed. Lastly, according to the allegations, CONALEP continues to make its teaching staff sign documents denying the existence of an employment relationship and feigning another type of relationship, although the form, terms and conditions all correspond to an employment relationship.
   • Given these serious allegations of interference and discrimination by CONALEP, the Committee requests the Government to conduct an inquiry into these acts and to provide detailed and specific information.
   • In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
     • (a) The Committee requests the Government to transmit the most detailed information on: (1) the manner in which an unregistered organization may defend and promote effectively the interests of its members and carry out its activities; and (2) the applicable legislation in the present case and whether it sets forth the denial of registration and on what basis.
     • (b) Concerning the allegations of interference and discrimination by CONALEP, the Committee requests the Government to conduct an inquiry into these acts and to provide detailed and specific information.

B. The Government's reply

1. 689. In its communications dated 24 May 2000 the Government explains that the National College of Technical Occupational Education (CONALEP) was established on 29 December 1978 as a decentralized public body with its own legal personality and assets and that its purpose was to contribute to national development by training qualified human resources on the basis of the following activities: providing technical occupational education at the post-secondary level; promoting services and activities to establish ties with the national system of production; developing and operating employment-targeted training services for work-skills training, refresher courses and technical specialization; establishing systems to provide occupational support and advisory services to bodies in the production, public, social and private sectors; implementing technical service programmes to support the community and training and promoting the skills enhancement of technical and administrative personnel and of its teachers. CONALEP was set up to train qualified technical professionals at the post-secondary level. Graduates receive an occupational qualification registered by the Directorate of Occupations, the aim of which is to strengthen the occupational and social prestige of this level of education. They are given the necessary basic scientific training to be able to perform the tasks inherent in their line of work and the necessary abilities to organize and supervise work in accordance with their intermediate level of involvement in the production process.
2. 690. The Government adds that CONALEP is one of the largest higher education institutions in the country, with a registered enrolment of between 200,000 and 220,000 students, an absorption rate of close to 10 per cent of secondary-school leavers nationally, a 44 per cent completion rate and an employment rate in the labour market of almost 70 per cent of its graduates in a 90-day period. In 1993 CONALEP was running 144 courses and in 1995 it was comprised of 260 institutions. The imbalance between available education and local regional requirements took a variety of forms between 1995 and 1999: courses existed for which there was no demand in the labour market, while other training requirements were not covered; 80 per cent of pupils were concentrated in ten of the 144 courses that were run up until 1994. The new teaching structure which came into operation in 1995 involved restructuring the available courses and strengthening the curriculum in order to alter the number of courses offered by the institution. From the 1996-97 school year onwards the number of courses was reduced from 144 to 63, which were grouped into 12 areas of technical occupational training.
3. 691. The Government states that from September 1997 onwards, CONALEP offered 29 courses, grouped into two major sectors of economic activity - industrial activities and services in nine areas of occupational training.
4. 692. The Government specifies that following its establishment the National College of Technical Occupational Education set up special bodies so that representatives from the production sector could participate directly in a variety of ways in decision-taking at the College. This liaison allows direct communication with the sectors of production, thus providing insight into the needs and expectations of students, workers and representatives of public and private bodies. This feature is the substantive basis on which the planning, management and evaluation of the College operates. The liaison is assured through the participation of bodies set up according to profession, in keeping with the principle of joint responsibility, allowing benefits and results to be shared. With the federalization of the College that began in 1998, the approach to liaison promotion and dissemination was reassessed as regards the relevance, openness and appropriateness of services, as it is the local bodies that best know the needs of the sectors that produce goods and services. For this reason representatives of the production sector participate in the board of management, CONALEP's highest management body. There are also state and institutional liaison bodies which are set up in the federative entities. The State Liaison Committee provides support, advice and consultations for the director of the state college and the representatives, as appropriate. Similarly, to ensure the relevance of available technical and occupational training, institutional liaison committees were set up comprised of representatives from the production sections of enterprises located near the institutions. These industries provide the College with experienced and capable individuals to serve as teachers and to transmit their practical knowledge and specific experience in various areas to the pupils.
5. 693. The Government adds that the total number of teachers in CONALEP ranges between 15,000 and 17,000, distributed throughout the 261 educational centres belonging to CONALEP across the country. Of these, approximately 6,000 cover subjects of basic training and 9,000 are responsible for occupational modules. Given the nature of the training process, the content of which is directly linked to technological advances, the teachers working at the College are preferably involved in the production sphere, being individuals interested in passing on the knowledge, expertise and skills they have acquired. Similarly, it is stipulated that the fees they are paid for their academic work should not constitute their sole or main source of income. Academic staff are contracted by semester according to the system of professional fees, as they have very specific - and duly verified - knowledge and provide their services in exchange for fees. An example of this is professionals who give courses to future air-conditioning technicians in the institutions located in areas where there are many hotels. This group of teachers clearly varies from semester to semester, as in each cycle the courses are given that the labour market of each region needs, and as Mexico covers almost 2 million km2 it is not possible to have permanent instructors as they could not be constantly moved to the different areas where each semester-long course is to be given. For example, an air-conditioning instructor from Cancún would have to travel 4,000 kilometres to give the same course in Baja California, and then he would have to travel a further 3,500 kilometres to give the course once again in Chiapas: for this reason jobs established on the basis of an employment relationship cannot be offered.
6. 694. Referring more specifically to the requests for information made by the Committee on Freedom of Association in its recommendations relating to this case, the Government states that the right of association exists even without the registration of the trade union or prior to it, as the ILO itself has stipulated and according to the provisions of Mexican legislation. In Mexico the right to freedom of association is established by the political Constitution, which is the supreme law. Articles 9 and 123, subparagraph XVI, establish that the right of assembly and of association is a right established as an individual guarantee. Article 9 determines that "the right of association and the right to peacefully assemble for any lawful purpose shall not be restricted". "The abovementioned guarantee relates to two types of rights: the right of assembly and the right of association." In the case of subparagraph XVI of article 123, Part A, this right is established by the provision that both workers and employers have the right to meet with each other in defence of their respective interests, forming unions, professional associations, etc. This provision is regulated by the Federal Labour Act (Title VII: "Collective Labour Relations", Chapter I, "Coalitions"), article 354 of which recognizes the right of workers and employers to form coalitions. In turn, article 355 defines a coalition as "the temporary agreement by a group of workers or employers for the defence of their common interests". Likewise, article 357 establishes that: "workers and employers have the right to establish trade unions, without the need for prior authorization".
7. 695. As regards the registration of trade unions, the ILO indicates in its Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of 1996 that establishing requirements in order to obtain the registration of a trade union (or any other formality to ensure the normal functioning of occupational organizations) is not contrary to Convention No. 87 as long as the guarantees contained in that Convention continue to be protected: "In its report to the 1948 International Labour Conference, the Committee on Freedom of Association and Industrial Relations declared that 'the States would remain free to provide such formalities in their legislation as appeared appropriate to ensure the normal functioning of occupational organizations'. Consequently, the formalities prescribed by national regulations concerning the constitution and functioning of workers' and employers' organizations are compatible with the provisions of that Convention provided, of course, that the provisions in such regulations do not impair the guarantees laid down in Convention No. 87" [para. 247]. In Mexico workers also have the option of forming a coalition to defend their labour rights. It should be recalled that the coalition holds the right to strike and that one of the objectives of striking, according to article 450 of the Federal Labour Act, is to seek a balance between the factors of production in order to harmonize the rights of capital and of labour.
8. 696. In Mexico workers may also set up organizations other than trade unions, such as civil associations, which bring together a number of individuals with a common purpose that is not prohibited by law and which is not of a predominantly economic nature. These associations are legally recognized and can interact with third parties. Thus, an organization set up as a civil association can defend and promote, validly and effectively, the interests of its members and carry out activities to achieve the purpose for which it was set up. Likewise, workers can form other types of associations to those already mentioned, such as cooperative associations, etc.
9. 697. In the current case, CONALEP has not infringed the right of association of the complainants nor have "policies and actions contrary to freedom of association been used", as demonstrated by the fact that in October 1999 a civil association was set up comprised of other professionals who provide services in the same occupational capacity as the complainants, in accordance with the individual guarantee set forth in article 9 of the Constitution. In addition, it should be pointed out that CONALEP recognizes its workers' right to organize and has signed a collective labour agreement with a trade union of workers on the payroll of that institution. It is therefore clear that Mexican legislation is entirely in line with the spirit of Convention No. 87, as workers have the possibility to defend their rights in an organized manner, even without the need for a trade union organization to be registered with the labour authority, and even in this case, they may effectively promote and defend the interests of their members and carry out their activities.
10. 698. As regards the information requested by the Committee concerning the applicable legislation in the present case and whether it sets forth the denial of registration and on what basis, the Government states that it is important to point out that the interpretation of legal provisions should not be carried out in an isolated manner for each article, but instead as a whole and taking into account the spirit of the law. For this reason reference should not solely be made to the provisions that deal with cases of the denial to register trade unions, but also to the legal provisions that stipulate the requirements to obtain said registration. The Federal Labour Act establishes the requirements to grant registration to a trade union; it indicates, inter alia, that the trade union should be made up of a minimum of 20 workers in active service. The article is not generic, but specific, and it does not indicate that there should simply be 20 people, but instead determines which type of people -workers in active service. The article in question reads as follows: "Article 364 - Trade unions shall be made up of 20 workers in active service or three employers, at least …". In its complaint SINTACONALEP reports that its rights of association have been infringed, alleging that it fulfils all the requirements contained in the Federal Labour Act, but basing its statement on article 366 of the same Act, which provides as follows: "Article 366 - Registration can only be denied: I. If the trade union does not intend to pursue the purpose stipulated in article 356; II. If it was not set up with the number of members established in article 364; and III. If the documents referred to in the previous article are not shown." As can be seen, article 366, part II, refers to article 364, which in turn provides the requirements to obtain the registration of the trade union. It should also be pointed out that Convention No. 87 itself recognizes as a prerequisite the necessary status of "workers" or "employers". Article 10 of this Convention provides: "In this Convention the term 'organisation' means any organisation of workers or of employers for furthering and defending the interests of workers or of employers", and also expressly stipulates in its content the obligation to comply with the legislation of each country. In this respect Article 8 of the Convention establishes: "1. In exercising the rights provided for in this Convention workers and employers and their respective organisations, like other persons or organised collectivities, shall respect the law of the land. 2. The law of the land shall not be such as to impair, nor shall it be so applied as to impair, the guarantees provided for in this Convention." It should be pointed out that legislation does not establish registration as a requirement to exercise said right, but as a prerequisite for the association to acquire legal personality. The Federal Labour Act includes the obligation to verify that the applicants for the registration of a trade union are active workers. For this reason, in the case before us, and also on the express request of those concerned, the General Directorate for the Registration of Associations requested the General Directorate of the Federal Labour Inspectorate to carry out the formalities for the identification of workers in 22 institutions belonging to the College. While the complainants have stated that the General Directorate for the Registration of Associations exceeded its powers when it denied registration for the reason described above, it should be borne in mind that said authority must ascertain the nature of the members in order to grant the registration in compliance with the law.
11. 699. The labour authority acted in accordance with the Federal Public Administration Organization Act which empowers it - if not obliges it - to comply with certain legal provisions, such as to oversee the content of the Federal Labour Act, and specifically the requirements to register a trade union, and establishes that it can collect any type of evidence to achieve this, without any other restrictions than those established in the Act. It is clear from the above that the administrative authority, in this case the General Directorate for the Registration of Associations, has not exceeded its powers and has simply fulfilled the provisions of the applicable legislation.
12. 700. Mexican legislation does not prohibit the right of association. Trade union registration is a guarantee that affords organizations' legal security; it is a requirement in order to obtain legal personality. But the ILO has also clarified the spirit of Convention No. 87 so that there is no incompatibility with national legislations such as that of Mexico.
13. 701. The Government indicates that in Mexico the registration of a trade union is a non-jurisdictional administrative act which is only refused when the applicants do not fulfil the requirements to establish themselves as trade unions. This does not mean that if registration is denied a restriction is being placed on the right of association, given that the law does not establish registration as a requirement to be able to exercise that right, but rather as a prerequisite for the association to acquire legal personality. In other words, the legislation is entirely in accordance with the spirit of Convention No. 87. In the extreme case of registration being denied for no reason, those affected may request the protection of the federal justice system through an action for amparo.
14. 702. The action for amparo established in the Political Constitution allows anyone to contest a legal rule or acts carried out by an authority that he considers to have violated his individual constitutional guarantees. The federal judicial power - in other words a body entirely independent of the administrative authority - has the jurisdiction to try actions for amparo, which is fully in accordance with the ILO's observations in this respect.
15. 703. In the complaint submitted to the Committee on Freedom of Association the complainants referred to two actions for amparo; these were resolved prior to the application for reconsideration of the facts. Referring to the decision issued by the first district labour court of the federal district, dated 22 September 1997, the Government recalls that SINTACONALEP lodged an action for amparo before the first district labour court (action 705/97), against the administrative decision issued on 30 April 1997 by the General Directorate for the Registration of Associations of the Department of Labour and Social Welfare in which it declared itself to be incompetent to try labour and trade union matters relating to workers in the service of the State, which was resolved, under review, in favour of the trade union organization on 22 September 1997. Part of the decision issued by the first district court (page 45) states the following: "On this same matter, and given that the notions of violation analysed are founded, the appropriate course of action is to grant the constitutional protection requested and for the responsible authority, the General Directorate for the Registration of Associations of the Department of Labour and Social Welfare, to declare void the contested decision of 30 April 1997 and to issue another one in keeping with the law in accordance with the guidelines contained in this decision." It is important to point out here that the fact that the Judiciary of the Union granted its protection to the complainants did not imply that the General Directorate for the Registration of Associations was necessarily obliged to hand down a new decision automatically granting the registration of the trade union, but simply to render the earlier decision invalid and hand down another one in keeping with the law (which turned out to be negative). Therefore, in view of the provisions of the executory judgement, the General Directorate for the Registration of Associations informed SINTACONALEP that the contested decision had been found to be invalid and that it would study and hand down a decision on the request for the registration of the trade union mentioned as it had been found to be competent to assume jurisdiction in the registration of decentralized bodies. Once the documents submitted by the persons concerned had been examined, on 22 April 1998 the General Directorate for the Registration of Associations requested SINTACONALEP to prove, in accordance with the law, that at least 20 of its members were CONALEP workers, basing its request on articles 8, 20, 354, 356, 357, 360, 364 and 365 of the Federal Labour Act, and No. 17 of the rules of procedure of the government department referred to previously in this document which indicates the need to fulfil the requirements as to substance and form required by law in this area, as for the establishment of this particular type of association the function of its members - whether as workers or employers - must be proven. As already mentioned, the members of SINTACONALEP did not prove their status as workers, but showed documents that established a relationship of a civil nature. On 1 July 1998, the first district labour court sent a procedural order to the General Directorate for the Registration of Associations in which it resolved that the responsible authority (the General Directorate for the Registration of Associations of the Department of Labour and Social Welfare) had fully complied with the provisions of the corresponding executory judgement, and ordered that the action be filed as definitively concluded.
16. 704. The Government indicates that once the denial of registration had been issued by the General Directorate for the Registration of Associations, SINTACONALEP proceeded once again to request the protection (amparo) of the Judiciary of the Union (action 77/99) against said decision, which was not granted, and as a result it lodged an application for judicial review of the facts. In the case of the second action for amparo lodged by SINTACONALEP on 17 March 1999, the jurisdictional authority in the fourth whereas clause referred to article 366 of the Federal Labour Act, specifying that in fact an employment relationship had not been demonstrated by the current complainants as they were unable to prove to the person responsible by way of reliable documentation that there was actually an employment relationship with the National College of Technical Occupational Education; this the competent authority was able to corroborate, given that the applicants requested it to conduct an inspection in the various schools where they said they were providing their services. The decision shows that it is a procedural requirement to prove the employment relationship and this was being stipulated by a jurisdictional authority, in this particular case the district labour judge in the federal district and not an administrative authority like the General Directorate for the Registration of Associations, amply proving that it is in accordance with Convention No. 87 and with the ILO's position on that Convention.
17. 705. As regards the last recommendation by the Committee on Freedom of Association, concerning the allegations of interference and discrimination by CONALEP, in which the Committee requested the Government to conduct an inquiry into the acts and to provide detailed and specific information, the Government declares that the competent authorities carried out an exhaustive investigation into the cases submitted to the boards of conciliation and arbitration relating to the allegations of interference and discrimination by CONALEP against the complainants, but did not find any evidence of claims in this respect by the trade union of workers (SUTSEN) of CONALEP or by the civil association established by teachers in that institution for the purpose of reaching collective agreements. As regards the alleged delaying tactics, it must be mentioned that the procedural guidelines and terms do not depend on the wishes and deadlines indicated by the litigants, but are fixed by the authority responsible for settling them. And in this case both the corresponding authority and CONALEP adhered in terms of time and form to the procedural requirements issued by the jurisdictional authorities.
18. 706. With respect to the accusation that CONALEP obliged the complainants to sign various documents contrary to their interests, no evidence of this has been found. At present this educational institution has approximately 17,000 teachers in its 261 centres, distributed throughout the country, and no other complaints have been made.
19. 707. Concerning the specific characteristics of the professional profile of the teaching experts, as well as the actual nature of the institution, it is of relevance that its dynamics are governed by the country's labour demand, and that the relationship with teaching experts cannot be a permanent one. The total number of teaching academics in CONALEP ranges from 15,000 to 17,000, distributed throughout the 261 centres CONALEP runs throughout the country.
20. 708. Given the nature of the training process, the content of which is directly related to technological advances, the teachers working at the College are preferably involved in the production sphere, being individuals interested in passing on the knowledge, skills and expertise they have acquired. Similarly, it is considered that the fees they are paid for their academic work should not constitute their sole or main source of income. Academic staff are contracted by semester according to the system of professional fees, as they are experts with very specific, and duly proven, expertise who are providing their services in exchange for fees. This group of academics varies from semester to semester as in each cycle the courses are given that the labour market of each region needs and as the territory of Mexico extends over almost 2 million km2 it is not possible to have permanent instructors as they could not be constantly moved to the different areas where each semester-long course is to be given.
21. 709. By way of conclusion the Government notes the following:
    • - In the Mexican legal system, the status of a Convention is higher than that of an Act. As a result its approval by the Senate of the Republic is a very detailed and inflexible process. The approval of Conventions presupposes that there is no contradiction with the Political Constitution or with Mexican legislation. In the present case Mexican labour legislation and the principles of Convention No. 87 have been complied with, as in the preparatory work for the actual Convention it was established that it would be left to arbitration in individual countries to establish in national law the formalities deemed appropriate to ensure the normal operation of occupational organizations, as long as these formalities did not pose a major obstacle to the exercise of the right of association and as long as the appropriate judicial resources were available to ensure defence against the possible denial of registration.
    • - The trade union registration requested by SINTACONALEP was not granted because the requirements established by law were not satisfied. There was no evidence of the existence of a labour relationship, and in records issued by the General Directorate of Inspection the existence of a civil relationship was shown, based on contracts for the provision of professional services. However, the complainants applied to the corresponding jurisdictional bodies to make the appeals they considered appropriate, thereby failing to comply with the decision issued by the administrative authority. In accordance with the provisions of paragraph 246 of the Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO on freedom of association, 4th edition, page 53, which provides, a contrario sensu, that recourse to a judicial authority against any refusal to register does not constitute a violation of the principles of freedom of association. Both actions for amparo were settled under review, in other words, another judicial authority revised the decisions handed down by the district labour courts of the federal district, in accordance with the provisions of articles 82, 83, 85 and others of Federal Amparo Act. It appears from the sentences that the administrative authority acted correctly in refusing to register SINTACONALEP.
    • - It is important to examine the Convention as a whole and not just in part in order to understand the spirit of the entire instrument. Article 2 of the Convention, for example, does not exclude the status of worker for those wishing to establish an organization, as there would be a clear contradiction with Article 10 of the same Convention, which defines the term "organization", as already mentioned above, as follows: "In this Convention the term 'organisation' means any organisation of workers or of employers for furthering and defending the interests of workers or of employers", and it would also be contrary to the very nature of the ILO. Even in this hypothesis, Mexican legislation concurs with the isolated interpretation of Article 2, as article 9 of the Mexican Constitution stipulates that anyone is entitled to the right of association, even those who are not workers. As one eminent professor pointed out, "A trade union is an association of persons, but not all persons may constitute trade unions, as these associations can only be established by workers or employers. As a result, an association of persons who do not belong to one of these two categories could be a civil or commercial association, but not a trade union" (De La Cueva, Mario: El Nuevo Derecho Mexicano del Trabajo, Vol. II, 8th edition, Porrúa, Mexico, D.F., 1995, page 332).
    • - It is important to bear in mind that the nature of CONALEP does not permit the contracting of a fixed staff of teachers. Owing to the professional experience that teachers must have, they are considered as being training experts rather than academics. And as it is a requirement that they remain involved in industry, the custom has been to contract them along the lines of the legal concept of a contract for the provision of professional services which covers all situations that could arise in connection with CONALEP, in other words it is an ad hoc concept, the contract giving rise to a relationship which is civil rather than labour in nature. At no time has CONALEP stopped its staff establishing associations as they see fit in order to conclude collective agreements, evidence of this being that they have a trade union (SUTSEN) and a civil association made up of teachers from the institution.
    • - Since Mexico ratified Convention No. 87 on 1 April 1950 there have been no cases of complainants alleging that in Mexico organizations are not allowed to form trade unions, which shows that there is no basis to the argument used by the complainants whereby: "The General Directorate took a negative decision as a delaying tactic, acting in bad faith and looking for arguments to support the illegal refusal to register. Having invented one cause for incompetence which was rejected by the higher bodies, the General Directorate went on to invent further requirements, such as the need to prove the employment relationship, which is stipulated in neither the Constitution nor the Federal Labour Act" [320th Report of the Committee on Freedom of Association, p. 198], as if this were an ongoing, common and repeated practice by the Mexican authorities. As has been established in the current document, national legislation is in accordance with the content of the Convention and the General Directorate did no more than comply with Mexican legislation. In addition, the complainants had the opportunity to be heard, and as a result were defeated, by a judicial authority other than that which handed down the refusal to register. However, even in this case, the right to freedom of association still remains.

C. The Committee's conclusions

1. 710. The Committee notes that the questions raised by the complainant teachers' organization relate to the following: (1) the refusal to register SINTACONALEP since its establishment on 2 February 1997; and (2) acts of interference and discrimination against the members of this organization by the National College of Technical Occupational Education (CONALEP).
2. 711. As regards the refusal to register SINTACONALEP since it was established on 2 February 1997, the Committee notes that according to the Government, the judgements handed down in the actions for amparo lodged by SINTACONALEP illustrate that the administrative authority acted in accordance with the law by refusing to register this organization. The Committee observes in this respect that it is a requirement for the registration of a trade union that it be made up of at least 20 workers and that SINTACONALEP did not prove to the General Directorate for the Registration of Associations that at least 20 of its members had the status of worker; similarly, the competent labour authority ascertained through inspections in various schools that there was no labour relationship between the members of SINTACONALEP and CONALEP but instead a relationship of a civil nature based on the provision of professional services. The Committee notes that according to the Government's declarations these contracts for the provision of services are justified: (1) as a result of imbalances between available technical teaching and local and regional requirements; (2) because different industries provide CONALEP, on the basis of its needs, with highly specialized individuals working in the sector of production, and the fees they are paid do not, in principle, constitute their sole or principal source of income; and (3) given that the staff is contracted by semester with the groups of teachers frequently varying from semester to semester on the basis of the requirements of the labour market in each region, with it not being possible to have permanent instructors.
3. 712. The Committee notes that, according to the Government, at no time did CONALEP stop its staff from establishing associations as they saw fit in order to be able to conclude collective agreements, as demonstrated by the fact that they have a trade union (SUTSEN) which has signed a collective agreement and also a civil association made up of teachers from the institution. Similarly, according to the Government, nothing prevents the members of SINTACONALEP from setting up a civil association to defend and promote validly and effectively its members' interests.
4. 713. The Committee considers that before formulating definitive conclusions about the allegation relating to the denial to grant trade union registration to SINTACONALEP it is necessary for the Government and the complainant to indicate specifically whether in the framework of a civil association the members of SINTACONALEP could conclude collective agreements with CONALEP, go on strike and engage in other types of action to enforce their claims, and whether they would have legal protection for any prejudicial acts they might carry out in defence of their economic and social interests, indicating, if so, the scope of this protection and its legal basis.
5. 714. Furthermore, the Committee notes that the members of SINTACONALEP carry out teaching activities for a period of at least six months and that this type of activity is performed by hundreds or even thousands of people. Although the Committee observes that, according to the Government, the persons concerned sign contracts for the provision of services, it is unable to determine as yet whether they are workers in the sense of Convention No. 87, and specifically if their status can be likened to that of workers employed on a fixed-term basis. Consequently, the Committee requests the Government and the complainant to provide further details on the content of the contracts for the provision of services, and also to send copies of such contracts together with as much information as possible on conditions of work (hours of work, paid leave, etc.), the employment relationship - if any - of the management staff of CONALEP, the application of occupational safety and health standards and social security standards, and the legal provisions regulating the termination of the contractual relationship between the parties.
6. 715. Lastly, the Committee notes the Government's observations concerning the alleged acts of interference and discrimination against the members of SINTACONALEP, but it considers that it should postpone its examination until it is in a position to formulate definitive conclusions on the allegations addressed in previous paragraphs.

The Committee's recommendations

1. 716. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government and the complainant to indicate specifically whether in the framework of a civil association the members of SINTACONALEP could conclude collective agreements with CONALEP, go on strike and engage in other types of action to enforce their claims, and whether they would have legal protection for any prejudicial acts they might carry out in defence of their economic and social interests, indicating, if so, the scope of this protection and its legal basis.
   • (b) The Committee requests the Government and the complainant to provide further details on the content of the contracts for the provision of services, and to also send copies of such contracts together with as much information as possible on conditions of work (hours of work, paid leave, etc.), the employment relationship - if any - of the management staff of CONALEP, the application of occupational safety and health standards and social security standards, and the legal provisions regulating the termination of the contractual relationship between the parties.
   • (c) Lastly, while the Committee notes the Government's observations concerning the alleged acts of interference and discrimination against the members of SINTACONALEP, it considers it should postpone its examination until it is in a position to formulate definitive conclusions on the allegations concerning the refusal to register SINTACONALEP.