Rapport définitif - Rapport No. 392, Octobre 2020

Cas no 3291 (Mexique) - Date de la plainte: 23-MAI -17 - Clos

Allegations: the complainant organizations denounce a series of anti-trade union acts against members of the SINTRAVELOTAX trade union organization carried out by a transport cooperative

1. 737. The complaint is contained in communications dated 23 and 31 May and 4 October 2017 from the Single National Independent Union of LICONSA Workers in the Mexican Republic (SUNITEL).
2. 738. The Government provided its observations in communications dated 30 January and 22 November 2018.
3. 739. Mexico has ratified the Freedom of Association and Protection of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 740. In its communications of 23 and 31 May and 4 October 2017, the complainant indicates that it is a trade union within a public administration enterprise of a parapublic nature called LICONSA SA de CV (hereafter the enterprise), legally established by means of an accreditation and registration confirmation dated 15 December 2014. The complainant organization alleges that it has been subjected to acts of anti-union discrimination by representatives of the enterprise and members of the National Union of Workers in the Dairy, Food, Similar and Related Industries of the Mexican Republic (SINDILAC), which is affiliated to the Confederation of Workers of Mexico (CTM) and is the titleholder of the collective agreement, including harassment and intimidation, unilateral workplace transfers, suspension of wages and other benefits payments, and unjustified dismissal. The complainant also alleges that the enterprise and the majority union have not recognized it as a newly established minority union.
2. 741. The complainant organization states that, when it presented its accreditation as a new trade union to the enterprise in December 2014, the enterprise responded with repressive measures by unilaterally transferring to another workplace the SUNITEL representatives and members Ms Araceli López Munguía (General Secretary), Ms María Isabel Guillén Torres (Records Secretary), Ms María Irma Flores Núñez (Labour and Disputes Secretary) and Ms Delfina Herrera Arriaga, from 29 January 2015 and throughout 2016 (attached are documents assigning the four SUNITEL members to a different sub-directorate of the enterprise at the southern metropolitan management work centre, to which they are assigned), and assigning them to the federal Government’s “National Crusade Against Hunger” campaign. The complainant organization states that, since January 2015, it has met six times with the Under-Secretary of Labour of the Ministry of Labour and Social Security, and with representatives of SINDILAC-CTM and the employer enterprise, who have not acknowledged the establishment of the new independent union or its proposals, which have been discredited and ignored.
3. 742. The complainant organization alleges that its members and representatives have suffered reprisals as a result of the establishment of the new union, citing: (i) Mr Alfredo Celedonio Flores Núñez, who was allegedly unilaterally transferred to the Toluca plant because he is the brother of one of SUNITEL’s leaders; (ii) Ms Leticia López Hernández, who, on 20 June 2016, allegedly received an eight-day suspension for administrative misconduct from the manager of the enterprise, in collusion with SINDILAC-CTM, who allegedly ordered security guards to block her entry to the premises; (iii) Ms María Irma Flores Núñez (Labour and Disputes Secretary) and Ms Leticia López Hernández, of whom the wage and benefits payments have allegedly been suspended since 14 March 2017; and (iv) Ms Araceli López Munguía (General Secretary), Ms Delfina Herrera Arriaga and Ms María Isabel Guillén Torres (Records Secretary), of whom the wage and benefits payments have allegedly been suspended since 15 April 2017.
4. 743. The complainant organization states that, on 12 April 2016, it initiated proceedings with the Federal Conciliation and Arbitration Board (JFCA) requesting bargaining rights to the enterprise’s collective agreement, in which it demanded the proportional representation of its affiliated workers as an independent union. The complainant reports in this respect that, on 13 June 2017, the JFCA issued its decision rejecting SUNITEL’s claim stating that the complainant had not provided a legal basis for its case and the recognition it was claiming as the representative of the its worker members could not be ruled upon by the JFCA because the registration of the organization has effect in relation to all authorities. On 26 June 2017, the complainant organization sent an “administrative injunction” to the Chairperson of the JFCA requesting the reestablishment of labour relations between the union members of SUNITEL, the enterprise and SINDILAC-CTM, but did not receive a response to its request and, on 4 July 2017, the complainant organization initiated legal action for protection of constitutional rights against the decision.
5. 744. The complainant reports that, on 9 June 2017, Ms Araceli López Munguía, Ms María Irma Flores Muñoz, Ms Delfina Herrera Arriaga, Ms María Isabel Guillén Torres and Ms Leticia López Hernández, were dismissed without reason and lodged a labour complaint against the dismissal. As the basis for their complaint, they cite section 123, paragraph A, clause XXII (employer obligations in the case of dismissal without reason or for joining an association or union).
6. 745. The complainant alleges that trade union dues for SINDILAC-CTM continue to be deducted from members of SUNITEL, even after they had changed union, and that the enterprise has not responded to its request for information regarding the reason for these deductions.
7. 746. The complainant organization states that it has lodged several written complaints with different authorities regarding the above events, which have not received a response or follow-up from the agencies and authorities concerned, including: (i) a complaint regarding the events of 15 May 2015 lodged with the Office of the Federal Attorney for the Defence of Labour (PROFEDET); (ii) a complaint dated 16 May 2017 lodged with the Under-Secretary of Labour of the Ministry of Labour and Social Welfare describing the violations of the rights of Ms Araceli López Munguía, Ms Delfina Herrera Arriaga, Ms María Irma Flores Núñez, Ms María Isabel Guillén Torres and Ms Leticia López Hernández; (iii) a complaint dated 25 May 2017 addressed to the President of Mexico, providing information and requesting he intervene and monitor the situation; (iv) a complaint to the National Human Rights Commission dated 1 June 2017, requesting the restitution of human and labour rights and reinstatement in the workplace; (v) letters (“misivas de extrañamiento”) dated 20 June 2017 addressed to the enterprise’s general manager, the Minister of the Interior and the Minister of Social Development and dated 29 June 2017 to the President of Mexico, stating that, since its establishment, the members of SUNITEL have been subject to harassment, victimization and psychological violence, in violation of their human and labour rights and; (vi) a request dated 14 June 2017 to the Director-General of the parapublic enterprise reporting the existence of a trade union committee composed of SUNITEL members to justify their union activities within the enterprise.
8. 747. The complainant also reports that, on 26 June 2017, SUNITEL applied to join the Revolutionary Confederation of Rural Workers (CROC), which accepted its application on 28 June 2017. On 4 August 2017, the Secretary-General of the Revolutionary Federation of Rural Workers (FROC), affiliated to CROC, sent a meeting request to the enterprise’s legal representative with a view to finding a coordinated solution to the conflict between SUNITEL, SINDILAC-CTM and the enterprise. The complainant organization states that no response to this request has been received.
9. 748. The complainant alleges that, on 27 September 2017, Ms Araceli López Munguía (General Secretary) and Ms Margarita Leticia Flores Prudencio (Publicity and Organizational Secretary) received a criminal summons to appear on the same day before the agent of the Public Prosecutor’s Office and the V-DDF Investigation Body of the Attorney General’s Office. The members of the complainant union did not attend the appointments, as they did not receive the advance notice established under section 72 of the Code of Criminal Procedure (48 hours in advance of the day and time when the proceedings are to be held). The complainant organization alleges that the summonses were intended to discourage SUNITEL from continuing to establish and promote itself.

B. The Government’s response

1. 749. In its communications dated 30 January and 22 November 2018, the Government provides observations from the authorities concerned and the enterprise.
2. 750. The Government indicates that, on 12 April 2016, SUNITEL initiated legal proceedings before the 16th Special Board of the JFCA by means of a complaint making various claims in relation to the enterprise and SINDILAC-CTM, including: (i) the inapplicability and invalidity of certain clauses of the collective labour agreement, amended on 14 November 2017, which established excessive privileges for the signatory trade union; and (ii) the recognition of SUNITEL’s right to defend the professional interests of its members. The Government states that the parties did not reach any agreement at the conciliation stage, due to the failure of the enterprise and the defendant union to appear, they also failed to appear at the conciliation, complaint and exceptions hearing and the hearing for the submission and admission of evidence, thus losing their rights to submit evidence and object to that of the other party. SUNITEL submitted evidence at the latter hearing that was admitted in its entirety. On 4 April 2017, the 16th Special Board of the JFCA handed down its decision absolving the enterprise and SINDILAC-CTM, because: (i) the complainant organization (SUNITEL) had not proven that it had the right to proceed with its legal action, given that, in exercise of the right to freedom of association and in conformity with section 388 of the Federal Labour Act (LFT), there may be more than one union in an enterprise; however, the majority union may have constitutionally and conventionally admissible privileges, consisting of the exclusive power to negotiate and review the collective labour agreement with the enterprise; (ii) the collective labour agreement applies to all unionized workers in the enterprise and members of the minority union are therefore protected on an equal footing with the workers of the majority union; (iii) the majority union’s right to hold the title to the collective labour agreement does not confer an advantage in such a way as to influence the workers’ decision regarding the organization they wish to join; (iv) SUNITEL is not denied the means to defend the professional interests of its members, since it takes the action it considers necessary, in the name or defence of the individual rights of its members; and (v) SUNITEL does not require accreditation and its recognition cannot be the subject of a JFCA ruling, as the registration of the union and its officers has legal effect before any authorities and third parties, as determined under section 368 of the LFT.
3. 751. The Government notes that, with regard to the request to the Chairperson of the JFCA for an administrative injunction, which was allegedly not addressed, by agreement of 22 February 2018, the request was reportedly regarded as received and, in view of the statements made, it was declared inadmissible in a final decision of 4 April 2017.
4. 752. The Government reports that the complainant lodged a direct appeal with the Seventeenth First Circuit Collegiate Labour Tribunal, which issued a ruling on 18 October 2017 rejecting the complainant’s appeal because it did not contest the grounds of the decision it was appealing. The case was closed on 14 November 2017.
5. 753. In view of the foregoing, the Government observes that the events that SUNITEL considers to have violated its trade union rights have been examined by the authorities in the first and second instance. However, the decisions, issued in accordance with the law, have not been in SUNITEL’s favour, as no violation of labour standards that negatively impacted them has been established.
6. 754. The Government notes that neither the labour complaint nor the appeal for the protection of constitutional rights concerned the bargaining rights for the collective agreement, as the complainant indicates in its complaint. However, the Government indicates that the complaint before the Committee on Freedom of Association refers to an inter-union dispute over the title to the collective labour agreement that governs the labour relations between the enterprise and unionized workers, particularly those from the Tláhuac Social Promoters Section of SUNITEL, working in the southern metropolitan management work centre and that SINILAC-CTM holds the bargaining rights for the collective agreement.
7. 755. As for the claim regarding the deduction of trade union dues for SINDILAC-CTM from SUNITEL members, the Government reports that: (i) all of the enterprise’s workers are members of SINDILAC-CTM, which represents the workers, including those who are supposedly members of SUNITEL; and (ii) no workers have requested to leave SINDILAC CTM or to pay dues to a different union and the enterprise is therefore unable to make any changes to the deduction of union dues, as such a unilateral intervention would violate the labour rights of the workers.
8. 756. With regard to the allegations of anti-union discrimination against SUNITEL members through workplace transfers starting in December 2014 when the enterprise was informed of SUNITEL’s establishment and accreditation, the Government denies such claims on the basis that all workers (including the supposed members of SUNITEL and other workers) are still assigned to the southern metropolitan management work centre. The Government indicates that these are subjective interpretations of the facts, which are not supported by documentary evidence or precise and concrete data. The Government indicates that the assignment of various workers to the “National crusade against hunger” campaign was undertaken in accordance with the individual employment contract signed between each worker and the enterprise, and that many workers were subject to these assignments or transfers, not only the members or affiliates of the complainant union. The transfer to a different work centre was therefore not an act of discrimination, repression or intimidation, but was intended to fulfil the social purpose of the enterprise. Regarding the case of Mr Alfredo Celedonio Flores Núñez, the Government reports that he was not transferred to the Toluca plant as indicated by the complainant organization, and has always been assigned to the Tláhuac Operatives Section of the southern metropolitan management work centre (the Government attaches payslips).
9. 757. In addition, with regard to the enterprise’s failure to recognize the existence of SUNITEL, the Government indicates that the enterprise has not been formally notified by SUNITEL of the accreditation supposedly issued by the labour authorities, having been informed of it only verbally, and that it has not received any requests or proposals regarding the trade union representation that SUNITEL intends to exercise.
10. 758. With regard to the complainant organization’s other allegations of anti-union discrimination, the Government indicates that: (i) Ms Leticia López Hernández was not suspended from working, since she has not been the subject of any administrative proceedings, so it is not the case that she was prevented from reporting for work or that she was restricted from entering her place of work; and (ii) with regard to the alleged suspension of payments to Ms Araceli López Munguía, Ms María Irma Flores Núñez, Ms María Isabel Guillén Torres, Ms Leticia López Hernández and Ms Delfina Herrera Arriaga, the Government states that at no time did the enterprise suspend payment of wages, but the workers stopped reporting for work as of 15 April 2017. In this regard, the Government points out that for workers in the company with the status of social promoter, which includes the above-mentioned workers, there is a mechanism under which supervisors monitor and supervise attendance by going to the product distribution sites to verify that workers are present at the location where they provide services. This mechanism detected the non attendance of the workers and a procedure was carried out, in accordance with the law, in order to avoid undue payment for services not rendered (annexed confidential incident report). The Government states that since wages are paid in exchange for the provision of services, payment for services not rendered is not appropriate since it would be to the detriment of the treasury or involve the enterprise diverting resources.
11. 759. With regard to the allegation of the failure to respond or follow-up of the relevant bodies and authorities of the Mexican State, the Government reports that: (i) on 15 May 2017, Ms Araceli López Munguía and Ms María Irma Flores Núñez personally requested advice from PROFEDET, which provided them with legal guidance on labour matters and asked them for data and documents to analyse the case; however, the applicants did not return; (ii) the National Human Rights Commission indicated that, with regard to the written complaint dated 1 June 2017 presented by various members of SUNITEL, for violations of their human rights, its analysis of the case revealed that the labour dispute was between LINCONSA and SUNITEL, it therefore stated that it did not have jurisdiction over the case under the law and advised SUNITEL to approach PROFEDET or the enterprise’s internal supervisory body as the bodies competent to conduct the relevant investigation; (iii) the Presidential General Directorate for Citizens’ Assistance reported that it had received the written complaints of 25 May and 29 June 2017, and forwarded them to the competent bodies, which responded; (iv) the general director of the enterprise stated that he had not received the request for information from the trade union committee alleged by the complainant organization, stating that there is no proof of receipt of the document and adding that there is no trade union committee for women workers; (v) with regard to the request made on 16 May 2017 to the Transparency Committee of the Ministry of Public Service, the request was granted in accordance with the law and the applicant was informed that requested information did not exist; and (vi) the enterprise stated that it had not received any written documentation with a description by the complainant organization of the events relating to harassment at work, which the complainant organization also stated were sent to the Ministry of the Interior, the Ministry of Social Development and the President of the Republic. In light of the above, the Government considers that all the requests made by the complainant organization were duly dealt with by the relevant authorities.
12. 760. The Government indicates that the Chairperson of the JFCA reported the existence of labour complaint No. 323/2017 filed under the names López Hernández and Leticia et al. with the Sixth Special Board of the JFCA, which is in the conciliation, complaint and exceptions stage. The judicial proceedings are ongoing. The Government indicates that the outcome of the proceedings for unjustified dismissal will be respected.
13. 761. The Government reports that, with regard to the meeting request sent by FROC to the legal representative of the enterprise with a view to finding a joint solution to the dispute, the enterprise indicates that there is no dispute to be resolved with the members of the complainant organization, stating that these individuals are still members of SINDILAC CTM and have not left that union and that the channels of communication with union members are via their legitimate union representatives in the enterprise. The enterprise also indicated that the conflict is inter-union in nature.
14. 762. The Government concludes by requesting the Committee to take into account the bias of the complainant organization’s statements, given that this organization has been recognized by the Mexican State, with respect for all its rights of freedom of association and the provision of support, advice, attention and timely responses to the requests made by the complainant organization, together with the resolution of the labour disputes in an impartial and fair manner by State institutions. The Government reaffirms that, given the individual nature of one conflict and the inter-union nature of the other, their resolution within the trade union movement is the sole responsibility of the parties concerned.

C. The Committee’s conclusions

1. 763. The Committee notes that, in this complaint, the complainant organization alleges that it has been subjected to acts of anti-union discrimination, including, inter alia, unjustified dismissal, suspension of wages and other benefits payments, harassment and intimidation and unilateral transfers of workplace; as well as the failure of the enterprise and the majority union to recognize SUNITEL as a newly established minority union.
2. 764. With regard to the proceedings to which the complainant organization objects, the Committee notes the Government’s indications that on 12 April 2016 legal proceedings were initiated by SUNITEL, in which the decision of 4 April 2017 was overturned in favour of the enterprise and SINDILAC-CTM. The decision deemed the complainant organization’s claims to be invalid since the organization did not have the right to request the annulment and removal of certain clauses of the collective labour agreement on the grounds that they granted excessive privileges to the titular trade union (SINDILAC-CTM), and recalled that, in accordance with section 388 of the LFT, when an enterprise has more than one trade union, the majority union shall have the exclusive power to negotiate and administer the collective agreement concluded with the enterprise, with the minority trade unions maintaining the right to defend the professional interests of their members and to be their spokespersons, inter alia. The Government notes that the administrative injunction submitted to the President of the JFCA to re establish the labour relations between SUNITEL, SINDILAC-CTM and the enterprise was addressed through an agreement of 22 February 2018, which ruled that it was inadmissible. The Government adds that the direct appeal for the protection of constitutional rights lodged by the complainant organization was also dismissed. The Committee also takes due note of the Government’s indications that the previous proceedings before the JFCA and the Collegiate Labour Circuit Court did not involve a claim for title to the collective agreement, as the complainant organization asserts (in the light of the information provided by the Government and the complainant organization, it is noted that proof of the workers’ vote count – a central element of any claim for title to a collective contract – was not requested at the trial).
3. 765. The Committee notes that, as the Government indicates, part of the complaint concerns an inter-union conflict between the complainant organization and the union that holds the bargaining rights to the collective labour agreement. Since disputes within the trade union movement are outside its competence, the Committee will not pursue its examination of the allegations relating to this conflict.
4. 766. With regard to the allegations of anti-union discrimination by the enterprise:
   • (a) as to the allegations of transfers to different workplaces starting in December 2014 (when the union allegedly informed the enterprise of its establishment), the Committee notes that the Government denies these allegations and explains that not only members of the complainant union were assigned to the federal Government’s “National crusade against hunger” campaign, under the provisions of the individual employment contracts. In this regard, the Committee notes that there are discrepancies with the complainant organization’s account. In the case of Mr Alfredo Celedonio Flores Núñez, the Committee takes due note of the Government’s indications that he was not transferred to the Toluca plant and the payslips which indicate that he is still assigned to the southern metropolitan management work centre;
   • (b) with regard to the allegations of suspension of payments to Ms Araceli López Munguía, Ms María Irma Flores Núñez, Ms María Isabel Guillén Torres, Ms Leticia López Hernández and Ms Delfina Herrera Arriaga, the Committee takes note of the Government’s indication that these individuals ceased to report for work on 15 April 2017, and the documents provided by the Government from the mechanism under which supervisors monitor and supervise attendance (for the period from 16 April to 15 May 2017). The Committee notes the discrepancies between the complainant organization’s statement regarding Ms Leticia López Hernández, who alleges that she was suspended for administrative misconduct on 23 June 2016 and that, subsequently, the enterprise ordered its security guards not to grant her access to the premises, and the Government’s indication that she had not been the subject of any administrative proceedings; and
   • (c) the Committee notes that the allegations of anti-union dismissals appear to be linked to the other allegations of anti-union discrimination, given that they concern some of the same individuals and issues (in particular whether there were unjustified absences). In this regard, the Committee notes the existence of a pending complaint of unjustified dismissal, in which the complainant organization alleges anti-union discrimination.
5. 767. In the light of the above, the Committee trusts that the proceedings underway will soon determine whether there has been any trade union discrimination by the enterprise, in particular with regard to the dismissal of the members of the complainant union, and if this is confirmed, appropriate sanctions and remedies will be taken, including reinstatement in the workplace.
6. 768. The Committee takes note of the information provided by the Government indicating that the various requests made by the complainant organization were adequately dealt with by the responsible authorities and bodies. In addition, the Committee notes that the complainant has not reported that the criminal summons to which it refers in its complaint led to the initiation of criminal proceedings against the trade unionists concerned.
7. 769. With regard to the allegation that the enterprise has failed to provide information regarding the reason why trade union dues for SINDILAC-CTM were still being deducted from SUNITEL members, despite their membership of the complainant organization, the Committee notes the information provided by the Government indicating that no workers have requested the enterprise to transfer their trade union dues to SUNITEL. Members may instruct the enterprise to transfer the payment of their union dues to the trade union organization of their choice, should they so wish.
8. 770. With regard to the allegation that the enterprise has failed to recognize SUNITEL, the Committee notes the discrepancies between the assertions of the complainant organization (referring, for example, to the absence of a response to the request of 4 August 2017 from the Secretary-General of FROC, affiliated to CROC, for a meeting to seek a joint solution to the conflict between SUNITEL, SINDILAC-CTM and the enterprise) and the Government’s assertions that there is no conflict that needs to be addressed between the enterprise and the members of the complainant organization.
9. 771. In the light of the above, the Committee invites the authorities concerned to promote social dialogue within the enterprise, including with the complainant union, in order to foster harmonious industrial relations.

The Committee’s recommendations

1. 772. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee invites the authorities concerned to promote social dialogue within the enterprise, including with the complainant union, in order to foster harmonious industrial relations.
   • (b) The Committee trusts that the ongoing proceedings will soon clarify whether the enterprise engaged in trade union discrimination, in particular with regard to the dismissal of the members of the complainant union.