Rapport définitif - Rapport No. 349, Mars 2008

Cas no 2577 (Mexique) - Date de la plainte: 06-JUIN -07 - Clos

Allegations: Unilateral imposition of new legislation governing freedom of association in violation of ILO Conventions Nos 87 and 98

1. 1007. The complaint is contained in communications of June 2007 presented by the Union of Workers of the National Autonomous University of Mexico, the National Union of Workers of the Secretariat of Agriculture, Livestock, Rural Development, Fisheries and Nutrition, the United Trade Union of Workers in the Nuclear Industry, the Independent Union of Workers of the Autonomous Metropolitan University and the National Union of Education Workers – section XI – (SNTE). These organizations submitted further information in a communication of 20 August 2007. The Government sent its observations by a communication dated 31 October 2007.
2. 1008. 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 complainants’ allegations

1. 1009. In their communications of June and August 2007, the complainant unions allege that on 28 March 2007 the Congress of the Union issued a decree law concerning the Government Workers’ Social Security and Services Institute, which in practice is a new provision of domestic law of the Mexican State pertaining to the social security of government workers that constitutes both a regressive measure by comparison with the previous legislation and a piece of legislation that directly contradicts the Political Constitution of the United Mexican States and ILO Conventions Nos 87 and 98 inasmuch as it unilaterally imposes, by means of legislation, modifications of the collective labour benefits for which unions have the right to collective bargaining. The new Act omits and excludes collective labour rights and benefits, without collective bargaining mechanisms having been established with the unions of government workers; and, in particular, without any mechanism for negotiation with the unions having been established. The benefits that have been unilaterally affected by means of legislation include the following:
2. – Retirement. This right is provided for in article 123(XI)(a) of the Constitution for all government workers. However, in the Act now being challenged, this right will be accorded solely to those workers who, being in active service at the date of entry into force of the Act, agree to be bound by the provisions of transitory section 10. This implies that both those workers who are active at the date of entry into force of the Act and agree to be bound by the provisions of transitory section 13 and workers entering subsequent to the date of entry into force of the Act are denied the constitutional right to a retirement pension.
3. – Rental or purchase of low-cost housing. Article 123(XI)(f) clearly spells out this right, which is omitted under the Act being challenged through the present application for protection (amparo). This right was fully recognized under the previous ISSSTE Act:
4. Section 3 – The following insurances, benefits and services are established with mandatory effect ... XIII. Rental or sale of low-cost housing belonging to the institute.
5. However, the Act approved on 28 March 2007 does not provide for this benefit, with the effect that the Act being challenged is unconstitutional on the grounds that it does not provide for even the minimum rights recognized under article 123 of the Constitution.
6. – New basis for the calculation of pensions. In its section 17, the new Act provides as follows:
7. Section 17. – The basic wage to be taken into account for the purposes of this Act shall be the wage indicated in the regional wage scale that has been drawn up for each post.
8. The contributions and rates established in this Act shall be applied to the Basic Wage, with the lower limit to be a Minimum Wage and the upper limit to be the amount equivalent to ten times that Minimum Wage.
9. It shall be the basic wage, up to the upper limit equivalent to ten times the Minimum Wage in the Federal District, which shall be taken into account for the purpose of determining the amount of the benefits payable under the occupational injury or illness, disability and life insurances established by this Act.
10. This approach to the calculation of pension amounts represents a significant and damaging reduction when compared with the level of protection that was afforded under the previous Act, whose section 15 provided as follows:
11. Section 15. – The basic wage to be taken into account for the purposes of this Act shall comprise solely the budgeted wage, allowance and compensation as referred to below, to the exclusion of any other benefit that the worker may receive in respect of his work.
12. Budgeted wage is the ordinary remuneration specified in the worker’s job description or letter of appointment in relation to the post or job in which he is employed. “Allowance” refers to additional remuneration paid to the worker in recognition of insalubrious conditions or high cost of living at the place of employment.
13. “Compensation” is the payment, granted on a discretionary basis in regard to amount and duration, that is made to a worker over and above the budgeted wage and allowance in recognition of exceptional responsibilities or tasks associated with his post or of special services provided, and which comes under the special heading “Additional compensation for special services”.
14. – Reduction in the amount of the state-assured pension. In addition to generally reducing the amount of pensions, the new Act provides, in its section 6(XIX), that the State will only guarantee pensions upon cessation at an advanced age or old age up to the amount of 3,034.20 pesos, whereas under the previous Act the State was responsible for the actual amount corresponding to the worker.
15. – Cancellation of the right to a “lump-sum benefit”. In none of its sections does the Act published on 31 March 2007 provide for the right to a “lump-sum benefit” (for a worker who, without having the right to a retirement pension or pension based on age and length of service, cessation at an advanced age or disability, separates from service on a permanent basis) – something which was provided for in sections 3, 87 and 88 of the previous ISSSTE Act.
16. – Granting of benefits based not on the fulfilment of rights but on “results”. The former ISSSTE Act clearly established the State’s commitment to ensuring that the Institute was able to meet its obligations vis-à-vis the workers’ rights, including in circumstances where the Institute’s assets were insufficient to satisfy those rights.
17. Section 177. – Should it at any time be the case that the Institute’s resources are insufficient to enable it to meet the obligations that are incumbent upon it under the act, the shortfall shall be covered by the agencies and entities in the proportion corresponding to each of them.
18. By contrast, the new Act bases the allocation of resources for the granting of benefits on commercial and macroeconomic equilibrium considerations, thereby reducing the degree to which the Institute will be in a position to protect human rights in the future.
19. – An additional criterion is added for exercising the right to a retirement pension. The new Act introduces an additional criterion to be met by workers opting to be bound by the provisions of transitory section 10 and wishing to exercise the right to a retirement pension, by requiring them to have reached a minimum age. In addition to the length of service requirement, it is now also necessary to have reached a specified minimum age for retirement, as laid down in the following transitory section:
20. TEN. – For those workers not opting to be credited with ISSSTE Pension Bonds the following arrangements will apply:
21. ...
22. II. As from the first day of January in the year two thousand and ten:
23. (a) Workers (male) having contributed for a period of thirty years or more and workers (female) having contributed for a period of twenty-eight years or more shall be entitled to a retirement pension in accordance with the following table:
24. Years
25. Minimum retirement
26. age for male workers
27. Minimum retirement
28. age for female workers
29. 2010 and 2011
30. 51
31. 49
32. 2012 and 2013
33. 52
34. 50
35. 2014 and 2015
36. 53
37. 51
38. 2016 and 2017
39. 54
40. 52
41. 2018 and 2019
42. 55
43. 53
44. 2020 and 2021
45. 56
46. 54
47. 2022 and 2023
48. 57
49. 55
50. 2024 and 2025
51. 58
52. 56
53. 2026 and 2027
54. 59
55. 57
56. 2028 and after
57. 60
58. 58
59. 1010. The complainant organizations emphasize that the legislative process covering the analysis, discussion, approval and publication of a reform of vital significance to the entire system of social security for government workers, involving the intervention of two legislative chambers, the Presidency of the Public, the Secretariat of Government and the Official Bulletin of the Federation, was completed in only 16 calendar days. They add that the Mexican State, in its dual role as both authority and employer, failed to submit the reform of its workers’ social security system to any form of prior negotiation with the workers’ organizations. In particular, it failed, before, during and after the approval of the legislative reform, to respect the right to collective bargaining of the organizations having submitted the complaint to the Committee on Freedom of Association.
60. 1011. Indeed, not only was the reform not brought before the day-to-day collective bargaining forums, but also no special representative machinery was set up for negotiation with the complainant organizations, nor with the unions of government workers as a whole, on the question of modernizing the social security system.
61. 1012. The complainant organizations go on to affirm that the Mexican State, through its legislature, had access to various mechanisms to enable consultation and negotiation with the organizations of unions as part of the legislative process. These mechanisms include the holding of forums, public consultations, round tables, hearings, etc., all of which have been widely used in the course of reform processes of lesser complexity and national significance. However, owing to the State’s political decision to impose the reform at any price and in the shortest possible time, the Legislature not only failed to implement any of the said mechanisms but also expressly voted against the proposal that the legislative commissions involved in analysing the initiative should hold forums and consultations with the trade union organizations and civic leaders, as can be attested to by the legislators of the Social Security Commission who presented a work plan along those lines. Unfortunately, the Legislature likewise refused to establish a formal mechanism for dialogue with the complainant unions, which were received only by a handful of legislators on a personal basis.
62. 1013. The complainant unions point out that what took place was a fast-track reform process without any social dialogue and without adequate legislative discussion. This is a blatant illustration of the fact that the reform amounted to a legislative imposition by the political parties holding a voting majority. It needs to be pointed out that the legislative process and practice were violated in the interests of approving the Act by what has come to be known as a fast-track procedure. From the typed record of the session of the Chamber of Deputies in which the initiative was presented it can be seen that the initiative was then passed in turn to the “Combined Commissions for Treasury and Public Spending and for Social Security”. This is a violation of the parliamentary process and practice whereby, where Combined Commissions are concerned, the matter must be brought in turn before all of the commissions which may have any interest in the subject of the initiative, with the first of those commissions being the one that will be most involved in the final drafting of the report. In this case, the commission most clearly competent to study the initiative was the Commission on Social Security, which should thus have come first. In addition to the Commission on Social Security and Treasury Commission, direct competence also lay with the Labour Commission.
63. 1014. Despite the fact that the majority of the political parties expressly contested these situations during the session, the President approved the decision to exclude the Labour Commission and to accord first place to the Treasury Commission (the manner in which the forces for and against were lined up meant that including the Labour Commission and giving first place to the Social Security Commission would have resulted in a more detailed analysis of the matter, the opening of a public consultation and, probably, the proposal’s ultimate rejection).
64. 1015. In a similar manner, only five days after the initiative was put to the commissions for study, its approval was discussed in the Chamber of Deputies, “dispensing with” the normal practice of examining the initiative on second reading; further, and as various deputies pointed out, the matter being put to the vote was a complex and far-reaching legal opinion which had been presented with only two hours’ forewarning, making it impossible to consider it in any realistic or effective manner. It is thus clear that the order of the day was to approve the Act in as short a time as possible, excluding from any dialogue or analysis not only the unions and civil society, but also the very members of the Legislature.
65. 1016. In achieving this objective, the Mexican State has violated the right to collective bargaining, to consultation prior to legal modifications, and to citizen participation, these being human rights which impose absolute limits on the State in the exercise of its legislative authority.
66. B. The Government’s reply
67. 1017. In its communication dated 31 October 2007, the Government states, with reference to the rules on the receivability of complaints, that the facts recounted by the complainant unions in their communications fail to establish the alleged failure on the part of the Government of Mexico to abide by the principles enshrined in the two ILO instruments, for the following reasons:
68. - The trade union organizations and sections do not indicate in their communications that they have been prevented from freely exercising their right to establish themselves with their own legal personality and assets in order to defend the interests of their members, in the manner and on the terms that they deem necessary; nor have they been prevented from exercising their right to formulate by-laws and regulations, elect representatives freely, organize their administration and activities or draw up a programme of action. Such are the rights which these unions enjoy and which the Government of Mexico undertook to guarantee through the adoption of appropriate measures when it ratified ILO Convention No. 87 on 1 April 1950.
69. - Nor do the matters raised by the union organizations and sections relate to the right to collective bargaining enshrined in ILO Convention No. 98, which, as is the case, has not been ratified by Mexico. They do not indicate that they have been inadequately protected against acts of anti-union discrimination in respect of their employment or against acts of interference by employers in their establishment, functioning or administration; that they lack appropriate machinery for the purpose of ensuring respect for the right to organize; or that appropriate measures have not been taken to encourage and promote the full development and utilization of machinery for voluntary negotiation between them and employers, with a view to the regulation of terms and conditions of employment by means of collective agreements.
70. - In addition, under its Article 6, ILO Convention No. 98 does not deal with the position of public servants engaged in the administration of the State. Thus, since some of the trade unions and their branches which lodged the present complaint are subject to article 123(B) of the Political Constitution of the United Mexican States (state administration), the provisions of that international instrument would not apply to them.
71. 1018. For these reasons, the Committee on Freedom of Association should not examine these communications. However, in order to contribute in good faith to the work of the Committee on Freedom of Association, and bearing in mind that its mandate is confined to the examination of communications concerning alleged violations of the principle of freedom of association and the right to collective bargaining, we should nevertheless like to make the following comments on the communications submitted by the union organizations and sections.
72. 1019. As regards the argument put forward by the union organizations and their branches to the effect that no collective bargaining took place during the examination of the Act on the Government Workers’ Social Security and Services Institute (ISSSTE), published in the Official Bulletin of the Federation on 31 March 2007 (hereinafter “new ISSSTE Act”), the Government will begin by referring to the reasons for the reform:
73. - Ever since its creation in 1959, the Government Workers’ Social Security and Services Institute (ISSSTE) has been providing government workers with protection in the form of social security.
74. - The ISSSTE had for several years been experiencing serious operational and financial problems which had resulted in a deterioration in the quality of its services and put at risk the fulfilment of its function as a pension system.
75. - These problems had arisen because the architecture of the ISSSTE’s pension system had been surpassed by a demographic and epidemiological transition which had pushed up the operating costs, while the level of income remained unchanged.
76. - The pension and health funds presented a growing financial deficit, which was covered by means of fiscal transfers, placing great pressure on public finances.
77. - The Pensions Bill was absorbing almost the whole of the subsidy that the Government was providing to the Institution.
78. - This situation ultimately reached a level of unmanageable complexity, making it necessary to undertake a structural reform of the ISSSTE.
79. 1020. The Government adds that, in accordance with the provisions of article 71 of the Political Constitution of the United Mexican States, the right to initiate acts of law lies with the President of the Republic, the deputies and senators in the Congress of the Union and the legislatures of the states, as can be seen below:
80. Article 71. – The right to introduce laws or decrees lies with:
81. I. The President of the Republic;
82. II. The Deputies and Senators in the Congress of the Union; and
83. III. The Legislatures of the States.
84. Bills submitted by the President of the Republic, by the legislatures of the States or by deputations thereof shall be referred at once to the committee. Those submitted by deputies or senators shall be subject to the procedure prescribed in the regulations on debate.
85. 1021. During the legislative process to approve the new ISSSTE Act, the federal deputies held various working meetings with legislators and representatives of workers’ unions in order to hear their opinions and observations. In the statement of reasons for the “decree issuing the Act on the Government Workers’ Social Security and Services Institute”, published in the Official Bulletin of the Federation on 31 March 2007, it is stated that:
86. - The Mexican President, Felipe Calderón Hinojosa, called together the main representations of the government workers to discuss the challenges and options involved in building a new ISSSTE on the existing foundations, and to seek together the best ways in which to resolve the Institute’s problems.
87. - Meetings were held with the widest possible spectrum of opinion and organizations of public sector workers, in particular with the Federation of Unions of Workers in the Service of the State (FSTSE) and the SNTE, which represent the vast majority of beneficiaries and, as such, had an in-depth knowledge of the Institute’s situation.
88. - The negotiation process for the structural reform of the ISSSTE included popular representatives associated with the workers’ organizations and with social security issues, who made valuable inputs that have been incorporated into the new ISSSTE Act.
89. - An agenda was drawn up which allowed for agreements not only on the diagnostic side but also in regard to the comprehensive reform that the ISSSTE needed in order to rebuild it as a new institution capable of satisfying the demands of its beneficiaries, supplying efficient services in the areas of health, housing finance and economic, social and cultural benefits, and guaranteeing that those working in the service of the Mexican State will, upon retirement, have a secure, befitting and proper income.
90. - In joining the project for the new ISSSTE Act, the workers’ organizations set out with the common view that the Government’s initial proposals, both formal and informal, for resolving the critical situation of the ISSSTE were in no way acceptable. They then demanded that the round table put aside rigid and ideology-based approaches which bypassed or undervalued the social vision with which the problem should essentially be approached, and which focused on solutions only to its financial aspect.
91. - One of the elements that was agreed upon in pursuing the initiative for the new ISSSTE Act was that of transparency, requiring that it be presented as being a combined exercise for the building of agreements between FSTSE, SNTE and other important trade union representations, and the Federal Government, through the Secretariat of Finance and Public Credit and the ISSSTE.
92. - At the insistence of FSTSE, SNTE and other workers’ organizations, the following points were expressly incorporated in the ISSSTE Act:
93. (1) The ISSSTE shall not be privatized; on the contrary, endorsement is given to the Mexican State’s commitment, rooted in solidarity, to the social security of its workers.
94. (2) The funds for workers’ retirement pensions shall be administered by a public body known as PENSIONISSSTE, and not by a private administrator.
95. (3) Pensioners and retirees shall not pay any fee in respect of the services they receive, and the federal Government shall, by law, assume the full cost of the current pension payroll.
96. (4) The present generation of workers shall have the option to receive a length-of-service recognition bond for migrating to individual accounts, without it being in any way possible for this to be made mandatory.
97. (5) The amount of the guaranteed pension is doubled.
98. (6) The parametric changes needed to strengthen the solidarity between the current and future generations of workers are situated far lower than the international average and will be applied gradually so as to reduce their impact to a minimum.
99. (7) The State will increase its mandatory contributions to social security from 19.75 to 25.145 per cent of the contributory salary.
100. (8) The State will make a specific social contribution for the purpose of improving health services, equivalent to 3.5 per cent of the contributory salary of each worker, representing an annual injection of additional resources of over 6 billion pesos under this heading alone.
101. (9) The State will make a specific social contribution for the pension fund, equivalent to 5.5 per cent of the minimum salary.
102. (10) The new generation of workers will have an individual account into which their own contributions and those of the State will be paid. At the request of the trade unions, this individual account will be increased and strengthened by means of a solidarity-based savings scheme in which, for each peso contributed by the worker, the State will contribute 3.25 pesos.
103. - In addition to the agreements achieved in the course of the negotiations held between the federal Government and major workers’ organizations for the benefit of the Institute and its beneficiaries, a historic agreement was reached to extend social security coverage to include casual workers, for the first time and in addition to the thousands of workers regularly employed in the different state agencies and entities under fee, contract and payroll arrangements, thereby giving them and their families access to the ISSSTE’s system of insurance, benefits and services.
104. - The trade unions, seeing the comprehensive reform of the ISSSTE as an opportunity to construct a new institution with a genuine ability to achieve its high objectives, demanded a reform that would guarantee the institute’s future viability, but that would above all enable it to meet the call for better services. On these premises, they called for and achieved a broad agreement with the federal Government, subject to the approval of the legislators, for the immediate injection of supplementary resources designed to eliminate shortcomings and enable a prompt, efficient, timely and quality response to the unsatisfied need for services for beneficiaries.
105. - The new ISSSTE Act responds both to the interest of the Mexican State and to that of the workers themselves, who decided to undertake a comprehensive reform of the institute in the interests of building a new social security institution. This Act serves to balance and harmonize the legitimate interests of millions of workers and their families with those of society as a whole, which has each year been assigning increasing volumes of resources which can and should be channelled into meeting other pressing requirements pertaining to our development.
106. 1022. The first consideration of the legal opinion issued by the Combined Commissions for Treasury and Public Spending and for Social Security of the Chamber of Deputies, in regard to the Bill on the Government Workers’ Social Security and Services Institute, emphasizes the importance of recognizing that in the course of elaborating the reform account was taken of the opinions expressed by a range of interested sectors in different forums and working meetings held since 2003, with the active participation of trade unions, social leaders, governors, local and federal authorities, and deputies and senators of the Republic. Furthermore, the Congress of the Union – Chamber of Senators and Chamber of Deputies – is made up of representatives elected by the people.
107. 1023. Regarding the arguments of the trade union organizations and their branches as to the existence, further to the adoption of the new ISSSTE Act, of alleged violations of trade union rights in Mexico, consisting in the omission and exclusion of collective labour benefits, the Mexican Government affirms that that Act contains no provision which impairs or modifies the collective labour agreements, which establish bilateral rights and obligations between the parties to the agreement. The new ISSSTE Act is an instrument which governs the social security services provided by the ISSSTE to government workers, and is not intended to impose limitations on or make modifications to the terms of the collective labour agreements.
108. 1024. In all events, the new ISSSTE Act will serve as a legal foundation for the agreement, through collective bargaining, of working conditions that provide improved benefits to the parties.
109. 1025. The Government recalls the statement by the trade union organizations and sections that the right to a retirement pension will be granted only to those workers who are active as at the date of entry into force of the Act and who opt to be bound by the provisions of transitory section 10. This implies that the constitutional right to a retirement pension is denied both to those workers who are active as at the date of entry into force of the Act and who opt for the provisions of transitory section 10, and to workers entering subsequent to the entry into force of the Act. The Government declares that it refutes that argument, since both section 3 of the new ISSSTE Act and its transitory section 10 provide for retirement insurance and pension without distinction, which means that, in terms of the foregoing, the ISSSTE Act, particularly transitory sections 3 and 10 thereof, refer to the same legal concept, the conclusion being that they do not violate the guarantee established in article 123(B)(XI)(a) of the Political Constitution of the United Mexican States.
110. 1026. The Mexican Legal Encyclopaedia of the Institute for Legal Research of the Autonomous National University of Mexico defines retirement pension as follows:
111. RETIREMENT PENSION [JUBILACION]. – Pension granted to a worker or to an employee in the public service or public administration for having completed a specific number of years of service, with monthly payment of a remuneration calculated on the basis of the proportional amount of the salary or wage received.
112. ...
113. In concrete terms, retirement is the cessation of any form of employment relationship with the simultaneous ending of any current contract of employment, enabling the worker to enter a state of retirement and thereby obtain a monthly annuity payment upon reaching a threshold age or having provided an employer with a specified number of years of work, be that employer an individual, a company or business, or the State.
114. 1027. From the above definition, it may be concluded that a retirement pension is the retirement benefit that is granted to a worker. This being the case, section 3 of the new ISSSTE Act, in making retirement insurance mandatory for the ISSSTE, does not contravene the provisions of article 123(B)(XI)(a) of the Constitution by the simple fact of not using the word jubilación (retirement pension), since, as has been shown, it corresponds to the same concept.
115. 1028. Section 3 of the new ISSSTE Act, in providing for retirement insurance, grants the right to a retirement pension, which is the retirement benefit that is granted to a worker in the form of a lifelong monthly remuneration once he or she has reached the threshold age or has served his or her employer for a given number of years.
116. 1029. Transitory section 10 of the new ISSSTE Act provides as follows:
117. TEN. – For those workers not opting to be credited with ISSSTE Pension Bonds, the following arrangements will apply:
118. I. As from the date of entry into force of this act and until the thirty-first of December of the year two thousand and nine:
119. (a) Workers (male) having contributed for thirty years or more and workers (female) having contributed for twenty-eight years or more shall be entitled to receive a retirement pension equivalent to one hundred per cent of the average amount of their basic wage in their final year of service, with receipt of such pension beginning as from the day following that on which the worker receives his final salary before separating from service; ...
120. This being the case, the trade union organizations and their branches are mistaken in their view that the retirement pension insurance was not included in the new ISSSTE Act, since it is clear from the statement of reasons for the “decree issuing the Act on the Government Workers’ Social Security and Services Institute”, published in the Official Bulletin of the Federation on 31 March 2007, that the proposal was to group the 21 insurances provided for under the previous Act, without eliminating them, into four insurances similar to those of the Mexican Social Security Institute (IMSS), with the aim of facilitating the portability of social security rights between the two institutes. These generic insurances are: (1) retirement, cessation at an advanced age and old-age; (2) disability and life; (3) occupational risks; and (4) health.
121. 1030. The fifth consideration of the legal opinion issued by the Combined Commissions for Treasury and Public Spending and for Social Security of the Chamber of Deputies, in regard to the Bill on the Government Workers’ Social Security and Services Institute states:
122. ... consider to be well-conceived the proposal relating to the corporate and financial changes by which the services, insurances and benefits provided by the institute are grouped into four insurances similar to those operated by IMSS: (I) retirement, cessation at an advanced age and old-age; (II) disability and life; (III) occupational injury; (IV) health; as well as the social and cultural services and the Housing Fund.
123. This measure will put an end to the confusion that is experienced by workers migrating from one scheme to another by facilitating the transfer of rights between the two institutes. Furthermore, the 1997 reform of IMSS has proved to be an effective tool in meeting the current needs of the beneficiary population, ensuring that institute’s financial viability and safeguarding workers’ rights.
124. 1031. The pension insurance, although it is no longer referred to as such in the new ISSSTE Act, has neither been abolished nor has it disappeared, but has simply been grouped under the generic heading of “Insurance for retirement, cessation at an advanced age and old-age” with the clear and specific intention of facilitating the migration of benefits between the IMSS and the ISSSTE when those concerned provide personal subordinate services, be it for the State or for a private enterprise.
125. 1032. As regards the assertion by the trade union organizations and their branches that the new ISSSTE Act fails to provide for the rental or purchase of low-cost housing, the abrogated Act did indeed provide for such rental, with a purchase option, in line with the programmes previously approved by the executive board (section 127). Although article 123(B)(XI)(f) of the Political Constitution of the United Mexican States provides that “Workers will be allotted low-cost housing for rent or sale”, it then continues with the words “… in accordance with the previously approved programmes”. Thus, the fact that the ISSSTE Act does not expressly provide for the possibility of rental, this does not imply that any guarantee has been violated, since under the provisions of our Constitution, the executive board of the ISSSTE can, at any time, establish a rental programme. It is, moreover, to be noted that workers derive far more benefit from a programme that enables them to purchase their home than from one which merely enables them to rent it. It is to be understood that the rental of housing is not governed by the regulations of the Act, since, under article 123(B)(XI)(f) of the Constitution, such housing is provided in accordance with previously approved programmes.
126. 1033. In cases where the constitutional body has intended that the Act is to make provision for a given right or obligation, it has made such provision in express terms. It is illustrative in this regard to see what is provided for in article 123(B)(IX), (XI)(b), (d) and the second paragraph of (f) and (XIV) of the Constitution.
127. 1034. Furthermore, the new ISSSTE Act is in line with the constitutional precept inasmuch as its section 4 provides as follows:
128. Section 4. – The following benefits and services are established with mandatory effect:
129. I. Mortgage and general financing for housing, be this for the purchase of land or existing housing, or for construction work, repairs, extensions or improvements thereto; as well as for the settlement of liabilities incurred in the course of such activities.
130. II. Personal loans:
131. (a) ordinary;
132. (b) special;
133. (c) for the purchase of long-term consumer goods; and
134. (d) extraordinary, for those affected by natural disasters.
135. III. Social services, consisting in:
136. (a) programmes and services providing support for the purchase of basic and consumable household products;
137. (b) tourist services;
138. (c) funeral services; and
139. (d) care services for child well-being and development.
140. IV. Cultural services, consisting in:
141. (a) cultural programmes;
142. (b) educational and training programmes;
143. (c) care for retirees, pensioners and persons with disabilities; and
144. (d) programmes to foster sporting activities.
145. 1035. From the above transcription, it is clear that the new ISSSTE Act does indeed foresee the provision of workers’ housing; and that is not all, since it also foresees the provision of loans to enable workers to purchase land, construct, make repairs, extend or remodel their homes and pay any debts they may have in regard to the foregoing. The aforementioned benefits are handled by the Institute’s Housing Fund (FOVISSSTE), which has its legal basis in section 5 of the new ISSSTE Act.
146. 1036. As regards the assertion by the trade union organizations and their branches that section 17 of the new ISSSTE Act establishes a different basis for the calculation of pensions (the wage that is shown in the regional wage scale for each post) that represents a significant loss for the worker in comparison to what is provided for in section 15 of the previous Act (budgeted wage, allowance and compensation), the Government declares that it refutes that argument, there being no grounds for the allegation of violation since the concepts of allowance and compensation had previously been replaced by the concept of regional wage scales, which serve to establish, generally speaking, the wage that corresponds to each worker on the basis of the varying average cost of living in the country’s different economic zones. Thus, in order to calculate the daily pension rate it was necessary to consider only the corresponding amount according to the regional wage scale used to establish the worker’s wage.
147. 1037. The decree of 29 December 1984, published in the Official Bulletin of the Federation of 31 December 1984, established that the amounts that workers received by way of allowances or compensation, to which sections 35 and 36 of the Federal Act on State Employees referred, were incorporated in a single wage; in other words, regional wage scales were established which generally determine the wage that corresponds to each worker on the basis of the varying average cost of living in the country’s different economic zones. Thus, in order to calculate the daily pension rate it was necessary to consider only the corresponding amount according to the regional wage scale.
148. 1038. The concept of allowance was replaced in 1984 by that of regional wage scales. Section 36 of the Federal Act on State Employees, which provided for additional compensation for special services, according to the extraordinary responsibilities or duties arising out of such special services, has been repealed, as can be seen from section 2 of the Decree reforming the Federal Act on State Employees of 29 December 1984, published in the Official Bulletin of the Federation on 31 December 1984. It is clear from the foregoing that the repealing of section 36 of the Federal Act on State Employees implied the elimination of the additional compensation for special services, to which paragraph 4 of section 15 of the abrogated ISSSTE Act refers.
149. 1039. Transitory section 3 of the decree by which section 36 of the Federal Act on State Employees was repealed provides that “where, in the Act on the Government Workers’ Social Security and Services Institute and other legal texts, a different connotation is given to wage or salary as applicable to government workers, this shall be understood as being included under the terms of section 32 of this Act”.
150. 1040. Section 32 of the Federal Act on State Employees states that:
151. The wage or salary laid down in the regional wage scales for each post constitutes the total wage to be paid to the worker in exchange for the services rendered, without prejudice to other benefits already established.
152. Where wage levels in the wage scale are equivalent to the minimum wage, they shall rise by the same percentage as the minimum wage. ...
153. 1041. Similarly, section 33 of the Federal Act on State Employees provides that:
154. The wage or salary shall be uniform for each of the posts listed in the general catalogue of Federal Government posts, and shall be included in the regional wage scales and respective disbursement budgets.
155. 1042. In the light of the foregoing, continues the Government, the definition of “basic wage” in the new ISSSTE Act is intended to be a broad reflection of the same definition of salary or wage that is given in section 32 of the Federal Act on State Employees, with the result that both have the same legal effects. Nevertheless, should an interpretation arise other than the one given here, only the terms of the aforementioned section 32 are to be applied, in accordance with the provisions of transitory section 3 of the Federal Act on State Employees.
156. 1043. As regards the assertion by the trade union organizations and sections that section 6(XIX) of the new ISSSTE Act indicates that the State will only guarantee pensions for cessation of work at an advanced age or old age up to the amount of 3,034.20 pesos, whereas under the previous Act the State was responsible for the actual amount corresponding to the worker, the Government declares that it refutes that argument: the guaranteed pension is that which the Mexican State will pay to those who meet certain requirements, and its monthly amount under the new ISSSTE Act will be the equivalent of two general minimum wages for the Federal District (3,034.20 pesos), to be updated annually in accordance with the national consumer price index.
157. 1044. The fact that the Mexican State, given the risk or contingency that an insured person may not accumulate adequate resources to purchase a lifetime annuity, undertakes, under the terms of the Social Security Act, to provide the necessary additional amount to enable that person to receive the guaranteed pension, is the most ample demonstration of the unquestionably reliable nature of the arrangements for retirement, cessation at an advanced age and old age.
158. 1045. The Institute maintains its support in solidarity with workers with fewer resources, i.e. the federal Government protects low-income workers by ensuring that they receive a guaranteed minimum pension. The new ISSSTE Act raises the amount of the guaranteed minimum pension from one to two minimum wages, equivalent to one minimum official wage. This modification is more in line with the actual wage situation of public sector workers, who have a higher minimum wage at the lower income end of the scale.
159. 1046. As regards the assertion by the trade union organizations and their branches that nowhere in the new ISSSTE Act is provision made for the right to a “lump sum”, whereas this was provided for in sections 3(X), 87 and 88 of the previous Act, the Government declares that it refutes this argument, since the lump sum is not an acquired right of active workers under the Political Constitution of the United Mexican States, given that the normative assumption is updated when workers definitively separate from service, meaning that this was an expected entitlement. The fact that the new ISSSTE Act does not provide for the granting of a lump sum causes no harm whatsoever to the trade union organizations and their branches, since:
160. - Under the previous Act, a worker wishing to retire had to have reached a minimum age and length of service. The new ISSSTE Act, while providing that workers retire at 60 or 65 years of age, also gives them the option of retiring before those ages provided they have sufficient funds in their individual accounts to purchase a lifetime annuity at least 30 per cent greater than the guaranteed pension.
161. - Under the new ISSSTE Act, workers ceasing to contribute to the ISSSTE do not lose the funds in their individual accounts, i.e. their own contributions, those made by their employer agency, the social contribution made by the State and the solidarity fund, which continue to be invested and to generate interest even though the worker is independent, in addition to which the worker will have the right to withdraw the accumulated balance upon reaching the age of 65.
162. 1047. With entitlement portability, a worker can move from public to private employment and accumulate in a single (individual) account both his/her resources and length of service. The lump sum thus ceases to have any meaning under the new arrangements, whereas previously the absence of entitlement portability made it a necessity.
163. 1048. The trade union organizations and sections assert that the new ISSSTE Act bases the allocation of resources for the payment of benefits on commercial and macroeconomic equilibrium considerations, thereby reducing the degree to which the Institute will be in a position to protect human rights in the future. However, this argument on the part of the trade union organizations and sections is unfounded inasmuch as their statements amount to purely subjective considerations lacking in legal substance. In no precept of the new ISSSTE Act is the provision of the services covered by the health insurance made conditional on the financial reserves and actuarial studies carried out by the ISSSTE; on the other hand, in order to guarantee provision of the services, section 42 lays down the manner in which the insurance is to be financed, establishing the dues to be paid by workers, contributions to be made by agencies and entities, and the daily social contribution that the federal Government is obliged to pay on a monthly basis for each worker.
164. 1049. The statement of reasons for the “decree issuing the Act on the Government Workers’ Social Security and Services Institute”, published in the Official Bulletin of the Federation on 31 March 2007, establishes quite clearly that the purpose of the regulations on reserves is to prevent “other insurances from absorbing resources from the medical area or vice-versa”. It also explains that “this change makes the costs and requirements of the different services transparent at all levels, at the same time ruling out cross-subsidies between insurances – a practice which has in the past led to an erosion of the resources that are essential to the maintenance and enhancement of the health services”.
165. 1050. The text of the aforementioned statement of reasons states that the functional separation between the health service provision and financial areas is in line with the aim of providing beneficiaries with better results at lower cost. This is why the new ISSSTE Act provides for such functional separation, in order to “ensure the existence of an area dedicated solely to the achievement of sound results on the medical and health side, as well as other areas with special responsibility for the financial evaluation of those actions and the adequate and equitable allocation of resources among the different providers”.
166. 1051. Indeed, the statement of reasons for the new ISSSTE Act points out that:
167. To facilitate the portability of social security entitlements, the initiative groups together, without eliminating any of them, the 21 insurances, services and benefits under the current ISSSTE Act into four insurances similar to those that exist under the IMSS, plus one social and cultural services item. The four insurances are in the areas of (i) retirement, cessation at an advanced age and old-age; (ii) disability and life; (iii) occupational injury; (iv) health ...
168. The statement of reasons for the new ISSSTE Act likewise states that:
169. ... this includes strict regulations governing the management of reserves whereby it is prohibited to use funds from any given insurance for any other purpose, even where that purpose forms part of the institute’s objectives ...
170. The proposed system of reserves implies that each insurance and service accumulates the resources which correspond to it in order to meet its current and future obligations, it being prohibited to transfer resources from one heading to another ...
171. 1052. The trade union organizations and their branches state that the new ISSSTE Act introduces an additional criterion, not present in the previous Act, to be met by workers opting to be bound by the provisions of transitory section 10 and wishing to exercise the right to a retirement pension, by requiring them, in addition to the length of service requirement, to have reached a specific minimum retirement age. The Government points out in this regard that it cannot be maintained that modifying the age, length of service and amount of contributions is unconstitutional, as is argued, on the alleged grounds that the new precepts are less beneficial to workers than were those of the abrogated ISSSTE Act. In order to countenance the retroactive application of the Act in question, it has to be shown that there were acquired rights which are being undermined or curtailed by the application of a new legal instrument.
172. 1053. It is to be noted that the foregoing does not violate rights acquired by active workers, since at the time of entry into force of the new ISSSTE Act, the right to a retirement pension was still not an acquired right, since not all of the specified requirements had been met to that end, and all they actually had was the expectation of an entitlement.
173. 1054. Indeed, the Supreme Court of Justice of the Nation has reiterated its case law to the effect that where a new Act gives rise to a situation whereby those to whom it applies obtain fewer benefits than those who benefited under a previous Act, this does not imply that there is any kind of violation of the guarantees inherent in the non-retroactive nature of law, equality and the certainty of law. The court bases this reasoning on the theories of acquired rights and of legal components. This being the case, no additional consideration is introduced in regard to the previous Act to allow for the exercise of the right to a retirement pension.
174. 1055. The Government’s conclusions are as follows:
175. (1) The facts that are recounted by the trade union organizations and their branches in their communications do not amount to any failure on the part of the Government of Mexico to abide by the principles of freedom of association and collective bargaining enshrined in ILO Conventions Nos 87 and 98, respectively. This being so, Case No. 2577 should not be accepted for review by the Committee on Freedom of Association.
176. (2) During the process of adopting the new ISSSTE Act, each of the arguments put forward by the workers through their representatives was taken into consideration.
177. This is clear from the statement of reasons for the “decree issuing the Act on the Government Workers’ Social Security and Services Institute”, published in the Official Bulletin of the Federation on 31 March 2007, where it is stated that consultations were held with FTSE and SNTE, the two trade union organizations accounting for the greatest number of government workers.
178. The trade union organizations and their branches which lodged the present complaint do not represent a significant proportion of the workers covered by the new ISSSTE Act, an example of this being the fact the present complaint was lodged only by Committee D II-CT-04 of section 10 of SNTE and the Executive Committee and 11 delegations of section XI, whereas SNTE was consulted during the process of adopting the new ISSSTE Act.
179. (3) The new ISSSTE Act does not contain any provision ordering the omission or exclusion of collective labour benefits or impairing the benefits provided for in collective labour agreements. It is an instrument which governs the social security services provided by the ISSSTE to government workers, and is not intended to impose limitations on, or make modifications to, the terms of the collective labour agreements.
180. (4) The new ISSSTE Act meets the current requirements of the entire insured population and pensioners, in addition to which the reform not only improves the amount of pensions but also the level of medical and hospital care and all of the services which the ISSSTE is called upon to provide to its beneficiaries.
181. (5) The Mexican legal system provides for means of appeal that can be used both by individuals and by organizations of workers who consider themselves affected by the entry into force of the new ISSSTE Act.
182. It is to be noted in this regard that the Supreme Court of Justice of the Nation has reiterated in its case law that where a new Act gives rise to a situation whereby those to whom it applies obtain fewer benefits than those who benefited under a previous Act, this does not imply that there is any kind of violation of the guarantees inherent in the non-retroactive nature of law, equality and the certainty of law. The court bases this reasoning on the theories of acquired rights and of the elements of legal rules.

C. The Committee’s conclusions

1. 1056. The Committee notes that in this case the complainant unions allege the adoption of a legislative reform to the Act on the Government Workers’ Social Security and Services Institute, imposed unilaterally and modifying labour benefits which ought to have been the subject of negotiation; according to the complainant unions, the legislative reform is unconstitutional and regressive by comparison with the previous legislation pertaining to retirement, the rental or purchase of low-cost housing, the basis for the calculation of pensions, the state-assured pension, cancellation of the right to a “lump-sum benefit”, granting of benefits based not on the fulfilment of rights but on “results”, and a new additional criterion for exercising the right to a retirement pension; according to the complainant unions, there was no negotiation or consultation with the trade union organizations either before or during the legislative process, which they also allege was tainted by irregularities.
2. 1057. The Committee takes note of the Government’s statements challenging the receivability of the complaint on the grounds that it does not imply any failure on the part of the Government to abide by the principles of Conventions Nos 87 and 98 or to apply Convention No. 98 (not ratified by Mexico) to officials working in the state administration. Concerning the substance of the complaint, the Government emphasizes that prior negotiations were held with the public sector unions, including the Federation of Unions of Workers in the Service of the State and the National Union of Education Workers – both of them majority organizations – (only one of the SNTE committees is a complainant in the present case), which succeeded through agreements in having ten points included in the bill, as detailed by the Government; the Government likewise asserts that the Chamber of Deputies took account, as from 2003, of the opinions of – among other actors – the unions and social leaders. The Government argues, moreover, that there is no truth in the allegation as to the omission or exclusion of collective labour benefits or in the alleged regression in the areas referred to by the complainants, and emphasizes that the Act neither impairs nor modifies the collective labour contracts or constitutes an obstacle to the granting of increased benefits by agreement of the parties, and that the reform, moreover, improves the amount of pensions, the level of medical and hospital care and all of the services which the Social Security and Services Institute is called upon to provide. In any case, the Committee notes that, unlike in other cases, the present case does not involve the modification or cancellation of clauses in current collective agreements or restrictions on the right to collective bargaining in regard to improvements in pensions and other benefits.
3. 1058. The Committee draws the attention of the Government to the fact that complaints lodged with the Committee can be submitted whether or not the country concerned has ratified the freedom of association Conventions, and that the mandate of the Committee consists in determining whether any given legislation or practice complies with the principles of freedom of association and collective bargaining laid down in the relevant Conventions [see Digest of decisions and principles of the Committee on Freedom of Association, 2006, paras 5 and 6]. The Committee further recalls that complaints may be lodged not only in relation to acts by the Government but also to acts by any public or private authority that curtails the exercise of trade union rights, which means that in the present case, where allegations have been made regarding a lack of consultation in relation to the legislative reform in the area of social security, the complaint must be declared receivable.
4. 1059. As regards the alleged absence of negotiation or consultation, the Committee wishes to emphasize that bills do not require consultations or negotiations with each and every one of the trade union organizations, it being sufficient that these take place with the most representative organizations at the national or sectoral level. Such consultations and negotiations would appear to have taken place in the present case, having resulted, according to the Government, in agreement on numerous points. The Committee recalls that such consultations must take place prior to the legislative procedure, but that they do not necessarily have to take place during the parliamentary proceedings.
5. 1060. As regards the alleged regressive and unconstitutional nature of the legislative reform in question and the alleged irregularities in the legislative process, the Committee, while noting that the Government radically denies those allegations, must emphasize that these questions lie outside its mandate and that, in any case, the Government draws attention to the existence of legal channels for those who consider themselves to be disadvantaged by the entry into force of the new legislation.

The Committee's recommendations

1. 1061. In the light of its foregoing conclusions, the Committee invites the Governing Body to decide that the present case does not call for further examination.