Rapport définitif - Rapport No. 368, Juin 2013

Cas no 2920 (Mexique) - Date de la plainte: 08-DÉC. -11 - Clos

Allegations: Unilateral issue by the Federal District Local Conciliation and Arbitration Board of “criteria for the proper functioning of collective procedures”, the content of which is claimed to violate national law, the Constitution and Convention No. 87

1. 654. The complaint is contained in a joint communication dated 8 December 2011 from the following organizations: the Federal District Higher Intermediate Education Institute Workers’ Union, the Federal District Housing Institute Workers’ Association, the National Union of Workers in Higher Intermediate Education and Decentralized Public Organizations, and the Federal District Firefighters’ Union.
2. 655. The Government sent its observations in a communication dated 1 March 2013.
3. 656. 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. 657. In a communication dated 8 December 2011, the Federal District Higher Intermediate Education Institute Workers’ Union, the Federal District Housing Institute Workers’ Association, the National Union of Workers in Higher Intermediate Education and Decentralized Public Organizations, and the Federal District Firefighters’ Union allege that on 25 October 2011 the Plenary of the Local Conciliation and Arbitration Board of the Federal District adopted “criteria for the proper functioning of collective procedures”, which were published in the Labour Bulletin of the Federal District Local Conciliation and Arbitration Board on 27 October 2011.
2. 658. According to the allegations, the abovementioned criteria for the proper functioning of collective procedures do not form part of the current Federal Labour Act and violate the rights of freedom of association to the detriment of workers in the Federal District; these criteria were imposed unilaterally and were published in the Labour Bulletin on 27 October 2011. Moreover, the Federal District Local Conciliation and Arbitration Board, as a local entity, has no power to amend, extend or define conditions established by a federal law or, consequently, to apply subjective interpretations devoid of any legal basis which undermine and prevent the free exercise of freedom of association and collective bargaining designed to achieve a balance between the factors of production. The complainants reproduce in their complaint the criteria issued by the Local Board.
3. 659. The complainants indicate that the contested criteria were issued by the Plenary of the Federal District Local Conciliation and Arbitration Board, which thereby overstepped the regulatory powers conferred on it by the Federal Labour Act solely for the purposes of its internal organization and not to enable it to impose extra-legal conditions or new obligations. Such criteria violate Convention No. 87 and encroach upon constitutional and legal powers that were conferred exclusively on the Congress of Mexico by virtue of article 73(X) of the Constitution. The complainant states that such criteria impose extra-legal requirements with regard to various collective procedures, such as trade union registration, recording of changes in union leadership or statutes, depositing and revision of collective agreements, strike notices and collective bargaining rights. The abovementioned criteria violate the principles of supremacy of the Constitution and the hierarchy of laws established in articles 1 and 133 of the Constitution.

B. The Government’s reply

1. 660. In its communication dated 1 March 2013, the Government states that in no way can it be considered that the State of Mexico, through the conduct of the authorities specifically referred to by the complainants, has violated the provisions of ILO Convention No. 87, since the complainant organizations are unable to substantiate the claim that the State acted in such a way as to prevent their establishment. Nor do they provide any evidence that the Mexican authorities prevented the workers from forming coalitions or freely joining the complainant organizations; or from drawing up their constitutions and rules, electing their representatives in full freedom, organizing their administration and activities or formulating their programmes.
2. 661. With regard to the allegations that the criteria in question violate the collective right to organize to the detriment of the workers of the Federal District and lay down requirements beyond those provided for in the Federal Labour Act, the Government indicates that the complainants claim such violations but do not state which collective rights have been violated by the application of the criteria; nor do they specify which “extra-legal” requirements were thereby established. They simply object to the fact that the criteria have been issued and have not been revoked, without saying exactly how they are supposed to be detrimental. It should be noted that the document setting forth the criteria was issued solely to elaborate on the provisions of the Federal Labour Act relating to the authority and competence that the Act confers on the Local Conciliation and Arbitration Boards. Hence the document cannot be considered to overstep the aforementioned Act since its purpose is simply to spell out the competence that the Act confers.
3. 662. The scope of competence of the Local Conciliation and Arbitration Boards in each federative entity is laid down in sections 621–624 of the Federal Labour Act, which only provides for their establishment, composition and general operation. Section 621 of the Act provides that the Local Conciliation and Arbitration Boards shall operate in each of the federative entities and shall be responsible for hearing and settling labour disputes which do not come within the competence of the Federal Conciliation and Arbitration Board.
4. 663. Consequently, the provisions of section 614(IV) of the abovementioned Act, set out below, are applicable to the Plenary of the Local Conciliation and Arbitration Boards:
   • Section 614.- The Plenary of the Conciliation and Arbitration Board shall have the following powers and obligations:
   • I.–III. …
   • IV. To harmonize the Board’s criteria for [dispute] settlement, whenever the Special Boards put forward conflicting arguments;
   • V.–VII. …
5. 664. In the light of the above, it is for the Plenary of the Local Conciliation and Arbitration Boards to harmonize the criteria for settlement. Accordingly, the issuing of the criteria by the Plenary of the Local Conciliation and Arbitration Board of the Federal District (JLCADF) does not infringe the Constitution or the Federal Labour Act since even the section cited above allows it to harmonize its settlement criteria and, hence, its mode of action.
6. 665. Account must also be taken of the fact that the criteria are for internal application by the JLCADF and their purpose, as their name indicates, is to ensure the proper functioning of the collective procedures of the Board itself. Accordingly, the document in question cannot be considered as being potentially detrimental to the complainants or to any other organizations.
7. 666. The Government adds that, notwithstanding the above, in order to ensure that the duties assigned to the JLCADF by article 123(A), second paragraph, clauses XVI, XVII, XVIII, XIX, XX and XXI of the Constitution of the United Mexican States and by sections 1, 2, 5, 6, 18, 685, 686 and other applicable sections of the Federal Labour Act, are coherent, kept up to date and duly fulfilled, the Plenary of the JLCADF, at its meeting of 5 October 2012, agreed as follows:
   • … SINGLE [PROVISION] - To revoke the INTERNAL CRITERIA GOVERNING THE PROPER FUNCTIONING OF THE COLLECTIVE PROCEDURES OF THE LOCAL CONCILIATION AND ARBITRATION BOARD OF THE FEDERAL DISTRICT published in the Labour Bulletin on 27 October 2011 … (sic) (Appendix).
8. 667. In conclusion, the Government states that the abovementioned notice shows that the grounds on which the complaint is based no longer exist and hence no report or action is necessary.

C. The Committee’s conclusions

1. 668. The Committee observes that in the present case the complainant organizations allege that the “criteria for the proper functioning of collective procedures” of the Local Conciliation and Arbitration Board of the Federal District, approved by the Local Conciliation and Arbitration Board of the Federal District and published on 27 October 2011, violate Convention No. 87, the Federal Labour Act and the Constitution of the Republic (principles of supremacy of the Constitution and the hierarchy of laws). According to the complainants, the abovementioned criteria violate trade union rights, with the Local Board arrogating power to modify conditions laid down in the Federal Labour Act and establishing new extra-legal obligations, thereby overstepping its merely regulatory competence provided for in the legislation, under which its prime purpose is to adopt the administrative and organic measures needed to ensure its better functioning without giving novel treatment to matters falling exclusively within the competence of the law. The Committee observes that, according to the complainants, the said criteria restrict freedom of association, the right to organize and to strike, the right to collective bargaining and trade union autonomy, imposing procedures with regard to trade union registration, recording (recognition) of changes in union leadership or statutes, depositing and revision of collective agreements, strike notices and collective bargaining rights.
2. 669. The Committee notes the Government’s statements that: (1) the complainants do not specify which supposedly “extra-legal” requirements were established by the abovementioned criteria; (2) the criteria were issued to spell out the authority and competence conferred by the Federal Labour Act on the Local Conciliation and Arbitration Boards and cannot be regarded as a document that oversteps the Act or infringes the Constitution; in fact the Act allows the Local Boards to harmonize the criteria for settlement and, hence, their mode of action; (3) the criteria are for internal application by the Board and their purpose is to ensure the proper functioning of its collective procedures.
3. 670. Lastly, the Committee notes in particular the Government’s statement that, in order to ensure that the duties assigned to the Local Boards by the Constitution and the Federal Labour Act are duly fulfilled and kept up to date, the Plenary of the Local Conciliation and Arbitration Board of the Federal District, at its meeting of 5 October 2012, agreed to revoke the internal criteria governing the proper functioning of the collective procedures of the Board. In the light of this information, the Committee considers that this case does not call for further examination.

The Committee’s recommendation

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