Individual Case (CAS) - Discussion: 2016, Publication: 105th ILC session (2016)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Mexico (Ratification: 1950)



A Government representative, citing the progress that his country had made, emphasized the commitment of the Government to freedom of association. Regarding the question of transparency in the registration of trade unions, he said that the number of local boards of federal bodies that had published lists of the registration of trade unions on their website, as required by law, had increased from two last year to 20 in 2016, and eight others were well on the way to doing so. With regard to the legislative and practical measures that had been taken for free collective bargaining and to guarantee the representativity of trade unions, the President of the Republic had, on 28 April 2016, submitted a major proposed reform of important aspects of the Federal Labour Act. In relation to the registration of collective labour agreements, the proposed reform provided that, before they could be registered, the authorities must confirm that a labour centre genuinely existed, that the workers were protected under the agreement, that they had received copies of the agreement and been fully informed of its content, and the status of the trade union that had promoted it. On the subject of the legal status of labour agreements, the proposal set out clear rules for conducting a recount election so as to ensure that the votes regarding the status of labour agreements were free and democratic. From the practical standpoint, the National Conference of Secretaries of Labour had issued a joint statement in June 2015 on two important aspects: (i) a categorical rejection of protection contracts; and (ii) a commitment to take firmer action against acts of simulation, which constituted a violation of freedom of association. In September 2015, the Federal Conciliation and Arbitration Board had adopted a set of good practice criteria for the conduct of recount elections, in order to ensure that each worker’s ballot was personal, free, secret and direct. In February 2016, a new labour inspection protocol had been prepared on free collective bargaining, under which labour inspectors were empowered to enter workplaces and interview workers directly, so as to ascertain that they knew which their trade unions were and which collective agreements applied to them. With regard to trade union pluralism in state departments, he welcomed the conclusions of the Conference Committee that legal restrictions did not apply, and that this did not pose a problem in practice. The Conference Committee had also recognized that the prohibition on foreign workers being on trade union executive boards did not apply either. Moreover, no specific case had come to light and no complaint on the subject had been lodged. On the contrary, some union by-laws expressly recognized the possibility of foreign workers to hold union office. With regard to the Committee’s concern relating to conciliation and arbitration boards and the need for them to be independent, autonomous and devoid of any conflicts of interest, the President of the Republic had submitted a constitutional amendment to the Constituent Assembly on 26 April 2016 which marked an important precedent and a turning point for the country. The proposed amendment provided that labour justice would in future be the responsibility of the judiciary, and would no longer be dependent on the executive and would not be of a tripartite structure. At the same time, conciliation machinery was to be strengthened. The proposed amendment would also provide for the establishment of an autonomous body responsible at the national level for the registration of collective labour agreements and trade unions. The head of that body would be proposed by the President and approved by the Senate to ensure transparency and autonomy. These reforms were the outcome of an extensive participation process at several levels and of broad social dialogue. The Government was therefore showing its determination to make the necessary changes to guarantee freedom of association and trade union autonomy, and it thanked the ILO for its collaboration in bringing about those changes.

The Employer members recalled that this subject was being discussed by the Conference Committee for the second year and that there were similarities with the previous year. Mexico had not ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). However, there were elements in the observation and direct request of the Committee of Experts on this case that created confusion between these Conventions. The observation referred to various matters: the murder of rural workers’ leaders; protests by workers from various sectors; the registration of trade unions; the representativity of trade unions and protection contracts; trade union pluralism in state bodies and the possibility to re-elect trade union leaders; elections of foreign nationals as trade union leaders; and conciliation and arbitration boards (which was also examined in Case No. 2694 of the Committee on Freedom of Association). The direct request, which was not included in the report of the Committee of Experts, addressed the issues of trade union registration, accreditation of trade union representatives, the right of workers’ organizations to organize their activities and formulate their programmes, and the proposal to amend the legislation concerning strikes. With regard to the right to strike, the Employer members recalled their reservations concerning the content of this right in Convention No. 87. They indicated that 40 of the 50 observations relating to the Convention in the 2016 report of the Committee of Experts referred to the right to strike. In 12 of the 16 cases in which the Committee of Experts made no reference to the right to strike in an observation, it did so in a direct request. In addition, of the 50 total direct requests relating to the Convention, 41 referred to the right to strike. The Employer members emphasized that the direct requests were not subject to tripartite oversight. Despite the fact that paragraph 36 of the report of the Committee of Experts explained the difference between observations and direct requests, and that the Chairperson of the Committee of Experts had stated that it followed these criteria carefully, it was necessary to clarify this difference and to review, with the support of the Office, the functions of the Committee of Experts in its various types of comments.

With respect to the progress made by the Government, the Employer members noted positively that the local boards of the 20 federal entities had published the trade union registers online, and a further eight were following suit. They also noted the various laws that had been adopted recently and requested the Government to clarify the scope of the General Act on transparency and access to public information of 4 May 2015. They warmly welcomed the rejection of protection contracts, according to a statement of the National Conference of Labour Ministers, as well as the reform of labour inspection which would help to combat practices such as the “note-taking” procedure mentioned in the direct request and to make progress in practice. With respect to trade union pluralism in state bodies and the election of foreign nationals to trade union executive bodies, despite the fact that the respective legislative restrictions had no effect, social dialogue should be stepped up. They also welcomed the draft constitutional reform, particularly because it clearly determined the competence of the judicial authorities to settle disputes in relation to collective bargaining between employers and workers. However, it was unclear, and the Government had not referred to the issue, whether and in what manner the employers were invited to participate in discussions on this reform process, and how they would be involved and consulted on this matter in the future. The Employer members urged the Government to intensify social dialogue over the coming months. With regard to the murder of rural workers’ leaders, an issue noted once again in the observation of the Committee of Experts, it was now clear that this question was not related to freedom of association, and therefore this point should not be dealt with subsequently. Turning to the protests by workers, further information was needed on the matter. Significant progress had been made in this case, and they therefore suggested that the conclusions should only include an invitation for more in-depth social dialogue.

The Worker members said that in 2015 the Conference Committee had reviewed the Government’s failure to comply with the Convention and concluded that it should, among other action, identify in consultation with the social partners additional legislative amendments to the 2012 reform of the Labour Act necessary to comply with the Convention, including the reforms needed to prevent the registration of protection unions. A protection contract was a collective agreement, signed between an employer and an undemocratic union, and which was only recognized by the employer. In most cases, workers had no knowledge of the existence of such an agreement until they tried to establish a union of their own. Management would then inform the workers that they were already members of a union and were covered by an agreement they had never seen or ratified. The main purpose of the protection contract system was to reduce wages and to prevent workers from enjoying democratic union representation. This system, which gave employers broad discretion to fix wages, working hours and conditions of work, had been maintained by State Conciliation and Arbitration Boards. The conciliation and arbitration boards were widely known to be biased against the legal rights and interests of democratic unions, and their decisions were influenced by the representatives of employer-dominated unions. Realizing that the protection contract system led to greater industrial strife and refusing to be associated with such a system which violated the right to freedom of association in supply chains, eight international garment brands had sent a joint letter to the Government in 2015 urging it to do away with the system. In April 2016, the President of the Republic had sent the proposed reforms to the Constitution and the Federal Labour Act to the Senate, which would in effect: (i) eliminate the conciliation and arbitration boards and transfer their legal functions to the judicial branch, thereby bringing all labour disputes to one mandatory conciliation hearing; (ii) bring the administrative functions of the conciliation and arbitration boards under a new decentralized federal entity; (iii) require that, before a collective bargaining agreement could go into effect, the labour authorities would verify that the company was operational, that it had workers and that these workers had received copies of the agreement and supported it; and (iv) establish tight time frames for each step in the election process to determine which union controlled the collective bargaining agreement. These reforms were also supported by some employers’ organizations. Referring to the long procedure and considerable time that would be taken by the Senate to approve and adopt legislative and constitutional reforms, the Worker members urged the Government to take all the necessary measures to ensure that these reforms were approved at the earliest possible time.

Protection contracts continued to dominate the industrial relations system and recent efforts by democratic unions to hold recount elections to remove protection contract unions had faced opposition and procedural irregularities. They referred to the example of an independent organization which had faced down a major automobile manufacturer and the protection contract union and had lost the election for union representation during the recount election in 2015, following a series of procedural irregularities. Moreover, aggressive anti-union campaigns by employers remained common in the country. In late 2015, 120 workers who had sought to establish a union at a factory in Ciudad Juarez which produced laser printer cartridges for a United States based company, had been dismissed following a strike for an increase in wages. The 2012 amendment to the Federal Labour Act, although aimed at providing greater flexibility in employment by replacing pay per day by pay per hour, had led to reduced job creation and an increase in temporary jobs, while wages and working conditions had deteriorated. Although the law prohibited companies from outsourcing a worker who had been assigned to perform a core function in the company, a 2015 report on the electronics sector had found that approximately half of the workers who performed core functions were outsourced and hired through temporary agreements. The use of outsourcing was a common tactic to avoid unions or to replace unionized workforces with contract workers. The courts had significantly narrowed the right to strike by allowing employers to nullify collective bargaining agreements under the theory of force majeure. The courts had challenged the constitutionality of sections 465 and 937 of the Federal Labour Act, which allowed workers to submit a request to strike to the Federal Labour Board for binding arbitration. This must be addressed through appropriate legislation. The Worker members recalled that the issues raised had been before the ILO supervisory system for many years and they hoped that the Government would take proactive steps: (i) to resolve issues related to protection contracts; (ii) to ensure that conciliation and arbitration boards did not collude with employers or protection contract unions to frustrate the ambitions of democratic unions to represent workers; (iii) to sanction those employers engaged in anti-union discrimination; and (iv) to amend other aspects of the law which the Committee of Experts had been commenting on for several years.

A Worker member of Mexico considered that the Government was engaged in a reform process with the aim of gradually being in compliance with the Convention and had provided the information requested of it, which was updated on the Internet. The Government had been making this change despite financial limitations, as the budget for state departments, including the Department of Labour, had been cut. In Mexico, exercising freedom of association was the prerogative of every worker and consequently every worker could choose which trade union organization to join. The fact that a collective labour agreement was limited to including what was established by law did not make it a protection contract. Of course, it was necessary to identify those who made undue use of protection contracts to avoid workers’ rights. The Federal Labour Act established the procedure for the acceptance, registration and cancellation of collective labour agreements, as well as applications for recognition as a bargaining agent, and for workers to choose the union that they wished to join. It was wrong to claim that protection contracts enjoyed the support of workers’ organizations, as it was the boards which accepted or rejected a collective agreement, observing whether or not it was in line with legal provisions. In conclusion, he referred to the legislative initiative introduced in the Senate. He observed that the opinions of workers and employers had not been taken into account. The conciliation and arbitration boards were tripartite in nature. The initiative attempted to judicialize these boards, with the courts becoming responsible for dispensing justice, thereby entirely removing the participation of worker and employer representatives and tripartism from the process.

The Employer member of Mexico began by referring to the working methods of the Conference Committee. He considered that, while there had been some positive changes, there remained areas in which more progress was needed to improve effectiveness. From a reading of the report of the Committee of Experts, it appeared that there were many issues that required prompt intervention by the Committee but, despite that, priority was given to cases where this was not so, or which had already been examined at previous sessions, with replies, explanations and commitments that were followed up in reports. This carried the risk of the repetition of observations and arguments, rather than constructive dialogue. It would be preferable to follow-up on the commitments made through the provision of reports and to give the States a reasonable time to comply with their commitments, after which compliance could indeed be required where adequate measures had not been taken and the progress achieved could be recognized. He observed that Mexico had not ratified Convention No. 98 and that the Committee should therefore not refer to matters related to collective bargaining in its conclusions. Similarly, it should refrain from dealing with issues relating to strikes which, despite the insistence of the Committee of Experts, were not endorsed by the Conference Committee. He considered that there were few new elements requiring immediate analysis. With regard to the murders of rural leaders, while they were regrettable, it had already been established that they were not workers, as had been recognized by the Committee. He said that, as the alleged acts of violence against trade unionists had only been reported recently, although not yet proven, a report had just been requested from the Government. On the issue of trade union pluralism in state departments, the explanation had been provided that this had been dealt with by case law, and that various trade unions and collective contracts existed. In relation to the functioning of the conciliation boards, he recalled that this topic that had been under consideration in Mexico for a long time, and tripartite consultation forums had even been set up. However, the issue was new for the Conference Committee, and therefore a report had recently been requested from the Government, which had explained that a legal and constitutional initiative had been introduced that would allow the problems to be addressed which had been identified in an April 2015 study. Unfortunately, employers had not been invited to take part in this study, nor in the work carried out prior to the initiative being introduced. He trusted that the legislative process would include the participation of workers’ and employers’ organizations for the purpose of effective social dialogue and discuss new provisions required to regulate procedural aspects and issues resulting from the constitutional reform. It was important to have sufficient time for the content of the legislative reform initiative to be examined through tripartite dialogue. With regard to transparent trade union registration, as it had been informed, the draft reform contained provisions that would guarantee that this objective would be achieved, for which purpose new institutions would be required, which would require constructive and participatory social dialogue. He trusted that the Conference Committee would understand the implications of tackling a challenge of such magnitude and would allow sufficient time. In conclusion, he said that, in the report of the Committee of Experts, issues were raised which simply did not exist, which merely reflected the statements made by certain organizations with the sole purpose of creating trouble. The real problems raised were being addressed and progress had been made. The legislative reform initiative recently introduced by the Government presented great opportunities and challenges and would require study, planning and action within a framework that guaranteed social dialogue.

The Government member of Panama, speaking on behalf of the group of Latin American and Caribbean (GRULAC) countries, expressed appreciation for the information supplied by the Government concerning the follow-up given to the observations of the Committee of Experts and took note of the progress made with regard to the application of the Federal Labour Act in relation to the publication of registrations, trade union statutes and collective agreements with a view to strengthening the transparent and democratic functioning of the industrial relations system. She also expressed interest in the initiatives to reform the Constitution and the Act, which involved a fundamental change in the labour justice system, particularly the transfer of the administration of labour justice to the judiciary, the creation of local conciliation centres and the creation of a specialized body for the registration of collective labour agreements and trade unions and for conciliation at federal level. Wishing the Government success in those reforms, she welcomed its openness and willingness to continue promoting frank and open social dialogue. Reiterating GRULAC’s commitment to respect for freedom of association, she trusted that the Government would continue taking steps to comply with the Convention.

The Government member of Spain, endorsing the statement made by GRULAC, acknowledged with interest the progress and efforts made in relation to the publication by Mexican state departments of the registration and by-laws of trade unions and collective agreements so as to comply with the goals set out in the Federal Labour Act, in the interests of strengthening governance and respect for trade union autonomy. He emphasized the historical significance of recent initiatives to amend the Constitution and the Federal Labour Act so as to transform the administration of labour justice with a view to strengthening the free exercise of individual labour rights. A paradigm shift was occurring, in which labour justice would be administered by federal or local judicial authorities, with conciliation procedures would become more flexible and effective through the creation of specialized and independent local conciliation centres and a decentralized body would register all trade unions and collective agreements, in addition to having conciliation at the federal level. He trusted that the effective implementation of this paradigm shift, in consultation with the social partners, would contribute to a significant change in the protection of labour rights and the goal of decent work.

The Worker member of Germany expressed great concern at the violations of the Convention in Mexico and particularly at the practice of protection contracts, which unfortunately also involved German employers. Protection contracts were contracts through which pseudo-unions torpedoed any action to achieve better wages and working conditions. These so-called protection unions were instructed by management to conclude agreements with the company. On paper, all employees were members of the protection union, without knowing it. Protection contracts agreed to without the participation of the workers, pressed wages to the lowest level, and unscrupulous individuals were paid by companies to keep away militant unions. Unfortunately, several German enterprises were among these companies. By binding workers to the protection union, they could not establish other independent unions and had to give up any hope of the negotiation of improved collective agreements. Workers who organized themselves in order to achieve better pay and working conditions faced intimidation and repression. Once the protection contract entered into force on paper, the labour courts, employers and local governments regulated everything else to prevent an independent union being able to push through a genuine collective agreement. Workers trying to defend their rights were portrayed as troublemakers and ran the risk of being placed on a blacklist by the company. Those who tried to leave the protection union lost their jobs. Protection contracts granted huge freedoms to the company in terms of hiring and firing, outsourcing and temporary employment, and were sometimes concluded before the plant even commenced operation. The number of protection contracts was on the rise, with about 80 per cent of collective agreements in Mexico being concluded as protection contracts. International companies from Europe should lead by example rather than concluding contracts that undermined workers’ rights, including the right to strike enshrined in the Convention. He called for the abolition of protection contracts in Mexico and regretted the absence of investigation of the death of the 43 students in 2015.

The Government member of the United States recalled that the case had been discussed in 2015 by the Committee, which had requested the Government to take specific steps to address persistent challenges related to, among other issues, the administration of labour justice and protection unions, including through legal reforms and in consultation with Mexico’s social partners. Later that year, the Government had launched a consultative process to develop proposals that would improve the country’s everyday justice system, including labour justice. On 28 April 2016, the President of Mexico had introduced to Congress a justice reform package that represented the culmination of that process, encompassing labour reforms through which the Government was affirmatively seeking to address concerns about freedom of association and collective bargaining that had been voiced for decades by Mexican workers and the ILO supervisory machinery, including by the Conference Committee. She applauded the introduction of such historic reforms, which included constitutional amendments that would fundamentally transform and modernize the Mexican labour justice system. The responsibility for resolving labour cases would be transferred from the Conciliation and Arbitration Boards to new specialized labour judges in the Mexican judicial system, and the registration of unions and collective bargaining agreements would be transferred to a newly created, independent entity. Such changes would help to guarantee a fair, transparent, objective and efficient labour justice system in Mexico that upheld workers’ rights to organize and bargain collectively. In addition, the planned labour law amendments would: help address long-standing concerns about protection unions by requiring a demonstration of worker support before registering collective agreements; and impose tight time frames for union elections that determined exclusive bargaining representation, thereby helping to address concerns about the lengthy delays in the union election process. She looked forward to the expeditious adoption of these transformative labour reforms by the Mexican Congress and to the subsequent approval of the constitutional amendments by the Mexican states, and hoped that they would be adopted, as introduced, and effectively implemented without delay.

An observer representing IndustriALL Global Union considered that the Government was pursuing an unequal and exploitative labour policy based on the system of employers’ protection contracts. The wages of Mexican workers were currently the lowest in Latin America, and were 40 per cent lower than wages in China. Whenever Mexican workers discovered that they were victims of a system of protection contracts, they would first ask why the trade union did not represent them and then face opposition from the entire network of complicity, corruption and control which did not allow them to organize freely and democratically. To be able to replace the protection union with an independent union, they had to file an application with the labour authorities for recognition as the bargaining agent, which would involve a voting process in which they chose the trade union of their preference. However, in practice, this process was very far from the one established in the labour legislation, the Constitution and the Convention. The process could take years due to deceit and malpractice by the authorities, enterprises and trade unions. For example, applications for recognition submitted in the mining sector and other sectors of the economy had taken between three and five years. In the case of one automobile enterprise, it had taken almost five years for the ballot to take place, and when it had eventually been held, the workers had been threatened by staff from the enterprise and by armed police, and the enterprise had selected which workers could vote. In most cases, workers who had expressed their preference for an independent trade union had been dismissed, threatened or beaten. Workers in the mining sector had been victims of “industrial homicide” in the Pasta de Conchos coal mine, where 65 miners had lost their lives in February 2006, and the enterprise remained unpunished with the complicity of the Mexican authorities. Furthermore, miners had been killed or injured in attacks by “shock groups” that were in collusion with the public security forces. The number of trade unionists who had been arrested arbitrarily or were in prison continued to grow. Cases included Juan Linares, who had been held in custody for over two years; Gustavo Labastida, who had been imprisoned for almost a year; and Jose Luis Solorio, who had been detained in a security centre for three days. In the mining sector, there were no trade unions that defended or represented the rights of workers. In conclusion, he urged the Government to ensure respect and justice for the workers and uphold their dignity.

Another Worker member of Mexico considered that, despite the information provided by the Government, there were still many issues to be addressed with a view to achieving compliance with the Convention. He criticized the functioning of the conciliation and arbitration boards, at both federal and state level, and particularly the way their members were appointed and the way in which cases were handled, which demonstrated serious structural problems. Freedom of association was undermined partly because of the situation of complicity between the Government, the employers’ and workers’ organizations. He also questioned the use of austerity plans. He hoped that the Government would take this opportunity to establish an authentic industrial relations system in Mexico, based on social dialogue between the employers’ representatives and democratically elected workers’ representatives. In the meantime, however, the Government should take measures to guarantee that workers could exercise their right to freedom of association in practice, under the existing law.

The Government member of Panama endorsed the statement by GRULAC and welcomed the information provided by the Government, in which it had expressed its utmost willingness and determination to comply fully with the Convention. The information presented contained the necessary clarifications and explained the measures that had been adopted with regard to freedom of association, such as the right to freely elect trade union representatives, the right of re-election, and the publication of the registers and statutes of trade unions by the conciliation and arbitration boards. She expressed her support for the reform initiatives of the Constitution and the Federal Labour Act, which the Government had introduced with a view to making a significant reform of the labour justice system, the conciliation services and the register for collective agreements and trade unions, as well as for the constant open dialogue with the social partners. In conclusion, she wished the Government every success in its efforts to give full effect to the Convention.

The Worker member of the United States, also speaking on behalf of the Worker members of Argentina, Brazil, Canada, Chile, Colombia, Ghana, Guatemala, Honduras, Mali, Nigeria, Swaziland, Uruguay and Zimbabwe, as well as the Confederation of University Workers of the Americas (CONTUA), recalled that in 2015 the Committee had heard how thousands of migrants in Baja California, working in conditions of modern slavery, had organized, formulated a programme of activities and gone on strike to defend their social and economic interests, bringing employers and the Government to negotiate and sign agreements in May and June. That exercise of freedom of association, including a strike, had taken place as a struggle against the failed national labour justice system and entrenched company-dominated unions that had long misrepresented most Mexican workers using protection contracts. These workers and those in two other states produced 85 per cent of Mexico’s berries, with over 90 per cent of the crop going to the United States, and 80 per cent of that being sold by major brands. The supply chain had grown rapidly and with no enforcement of basic workers’ rights, yet it was projected to be Mexican agriculture’s highest value export, already producing 30 per cent of the berries in the world, that were currently valued at 1.5 billion dollars, with the expectation that they would reach 3 billion by 2020. A year after the agreements had been signed by employers and the Government, the Mexican berry workers leaders were stating that conditions and pay remained the same, violations of the law continued, workers and their families were still excluded from social security, healthcare, housing and education, employers and the Government continued to make hollow agreements with organizations that they, and not the workers, chose. Since the latest agreement merely summarized existing commitments to farmworkers in Mexico, without committing sufficient resources, the union representing those who had gone on strike and had negotiated in San Quintin had refused to sign. Despite being incomplete, as they failed to address problems in the public sector, the Government’s proposed reforms to the labour justice system were a positive development, addressing demands that independent unions had long made. However, the Government still needed to take full responsibility for these reforms and use its political will to ensure that they were rapidly approved and implemented, as it would otherwise lose credibility. Given the experience of the previous year, there was a justified distrust that the proposals would actually become law and be implemented. To gain support and trust nationally and internationally, the Government should adopt the principles of impartiality and transparency that the reforms could represent by resolving many long-standing and well-documented labour violations, such as those of the San Quintin farmworkers. Without real reform in law and practice, Mexico would be in violation of the Trans-Pacific Partnership Agreement (TPPA), which contained a strong commitment to the core Conventions, including Convention No. 87, from the moment of its entry into force.

The Government member of Honduras endorsed the statement by GRULAC and expressed his support for the measures adopted by Mexico with a view to achieving compliance with the Convention. He took note of the action taken by the Government, particularly in relation to the publication of the registration of trade unions, the plan to transfer the administration of labour justice to the judiciary, the establishment of conciliation centres to render conciliation processes more flexible and the procedures for the registration and deposit of collective labour agreements. He urged the Government to continue to develop new mechanisms for dialogue with the trade unions in the context of the current reform initiatives, in accordance with the Convention and for the benefit of workers’ fundamental rights, with a view to guaranteeing observance of the exercise of freedom of association in the country.

An observer representing the International Transport Workers’ Federation (ITF) called on the Government to intervene as a matter of urgency to end the situation faced by Benito Bahena y Lome, General Secretary of the Alliance of Tram Workers of Mexico (ATM) and executive board member of the ITF, who had been persecuted over the previous 12 months by the local state-owned transportation company for reporting violations of workers’ rights and denouncing a lack of investment in public transport. In addition to being dismissed from his job, he had been physically and verbally intimidated and forcibly denied entry to his union office. In an attempt to further paralyse the union, the company was refusing to remit union dues through the check-off system. Not even a court ruling confirming Bahena y Lome as the legitimate leader of the ATM had stopped such violations of trade union rights. He associated himself with the concern and indignation expressed by IndustriALL regarding the continued and widespread practice of employer protection contracts in all industrial sectors in Mexico, which deprived workers of any right to demand safe working conditions, labour inspections, compensation or social security. Every announcement of new foreign investments in the country came with a perfectly tailored protection contract, also conveniently advertised on the Internet. In all the cases mentioned in Case No. 2694 of the Committee on Freedom of Association, the protection contract had been signed in the same week as the investment had been announced, long before the plant had been constructed or the workers employed. The protection contract system had tragic consequences, notably an explosion in the Pajaritos petrochemical plant in Veracruz on 20 April 2016, where companies and government agencies had denied responsibility for the over 130 workers injured and 32 subcontracted workers killed, leaving the bereaved families without compensation. Also in Tlaxcala, a well-known transnational shoe and garment company had closed without following due process, dismissing 450 workers and refusing to pay proper compensation recognizing the, on average, 25 years of service of the workers. When the union had picketed the plant to stop the removal of the machinery, the State Governor had stepped in and supported the company to press false charges against the union leaders, pressure the workers to accept a substandard redundancy package and arbitrarily imprison the union’s General Secretary for over nine months.

The Government member of El Salvador endorsed the statement made by GRULAC and thanked the Government for the detailed information provided. She acknowledged the progress Mexico had made towards applying the Convention, particularly with regard to the publication of trade union registrations and collective labour agreements, the proposed draft reform of the Constitution and the Federal Labour Act, the plan to transfer the administration of labour justice to the judiciary, and the creation of local conciliation centres to facilitate conciliation procedures. She noted Mexico’s commitment to freedom of association and expressed her belief that the Government would continue to implement policies aimed at guaranteeing respect for the exercise of freedom of association in the country and compliance with the Convention.

The observer representing the Confederation of University Workers in the Americas (CONTUA) denounced the violence against trade unionists experienced in Mexico, including in the mining, telephony, footwear, electricity and education sectors. Far from coming to an end, the violence had increased in recent years. Trade union activities were ever more risky, against a background of complex social violence in which state corruption and drug crime were intertwined and social groups were victims for lack of protection, as in the case of the 43 Ayotzinapa students who had been murdered. So-called protection contracts made a real mockery of social representation and collective bargaining. No progress had been made in removing this illegitimate concept that the Committee of Experts had described as a simulation of collective bargaining. The Government had provided information on supposed plans to abolish this practice, but no progress had been made in this respect, and the ILO should intervene actively to reach a solution that would bring an end to such contracts. The labour situation in Mexico was becoming worse. Mexico’s ratification of the TPPA and the continuing negotiations on the Trade in Services Agreement (TISA) would signify a clear step backwards in the area of labour rights, as they meant that ILO Conventions would become subordinate to trade rules. As a result of the TPPA negotiations, the Government was pressing on with an initiative to introduce labour reforms, demonstrating the executive’s need to present a proposed legislative amendment that met external requirements. The Government was trying to push through an expeditious reform process but, faced with the pressure of complaints and action by national and global organizations, it had been obliged to begin a process of negotiations. The official reform proposals did not provide a definitive solution to the problem of protection contracts, nor did they meet demands to eliminate state control over trade unions, which impeded the exercise of freedom of association, genuine collective bargaining and the right to strike, which was restricted for state employees by Article 123B of the Constitution. The executive’s proposal maintained the contested National Minimum Wage Commission, which had impeded urgent measures to restore the purchasing power of wages. In conclusion, he observed that the Government did not have the true will to make the changes necessary to achieve freedom of association. On the contrary, there was evidence of an attempt to impose more flexible rules, which allowed market rules to gain ground without guarantees of respect for the rights of workers, social equity or the equitable redistribution of wealth.

The Government representative thanked all the participants in the discussion, and indicated that all the comments and observations would be taken into account in the labour legislation reform process that was being carried out. The Government was committed to giving priority to social dialogue in this process. With regard to the criticisms that the employers and workers had not been consulted during the preparation of the draft reforms, he indicated that they were only a proposal. The details were not known because it was a recent proposal, which reflected the comments made by the employers and workers in various areas. It was now necessary for all social partners to participate so that the reforms could be refined. Employer and worker representatives would be heard for that purpose. The Government had always supported the involvement, opinions and participation of all sectors in the major changes in the country, including those relating to labour. The Government had the political will to make amendments to the draft that were necessary to give effect to the reforms. He noted that it was necessary to amend some aspects of the current labour legislation. While priority was given to form in current labour legislation, the objective was to adequately address questions of substance. That was why reforms were needed. The Government did not concur with some of the observations made during the discussions. With regard to the existing legal obligation to publish the registration of trade union by the local boards of the 31 states in the country, it needed to be taken into consideration that the digitalization of a system with that amount of information took time. With respect to outsourcing, he considered that the problem arose when it was used with the intention of evading labour law. Finally, he expressed Mexico’s commitment to continue making progress in the reform and adoption of measures to bring labour law and practice in Mexico fully into line with the provisions of the Convention.

The Worker members welcomed the information provided by the Government and the constituents. The Government had an important and historic opportunity to create an authentic industrial relations system in the country based on social dialogue between employer representatives and democratically elected worker representatives. That was indeed the foundational and guiding principle of the ILO system, enshrined in the ILO Constitution of 1919. Without authentic representativity and representatives, there would be no social justice and consequently no lasting peace as evidenced in practice in Mexico and elsewhere. They referred, by way of example, to the thousands of teachers of the National Coordination of Education Workers (CNTE) who had marched against the education reforms depriving teachers and professors of their right to freedom of association. The Worker members once again welcomed the proposals put forward by the President of Mexico, which addressed many concerns, and urged their adoption as soon as possible, while emphasizing that, in the meantime, the Government should take measures to ensure that workers could exercise their right to freedom of association in practice under existing law. As indicated during the discussion, companies regularly continued to violate that right with impunity. In conclusion, the Worker members urged the Government to: (i) fulfil without delay its existing legal obligation to publish the registration of trade unions in the local boards in the 31 states of the country; (ii) enact the reforms to the Constitution and Federal Labour Act, as proposed by the President; (iii) ensure that the legislation prohibited the use of agency labour to perform the core functions of an enterprise, which had undermined the ability of workers to establish or join a union; and (iv) produce a detailed report on the progress made to comply with those recommendations by the next session of the Committee of Experts.

The Employer members thanked all the speakers for their comments and the Government for providing very detailed additional information in a constructive manner. Progress had been made on many of the issues raised by the Committee of Experts, as other speakers had acknowledged. Other topics would continue to be reviewed with a view to moving forward, such as the representativity of trade unions and protection contracts. In this regard, they emphasized the need to have the widest possible representativity as a necessary requirement for strengthening the trade union movement. Concerning the difficulties of registering trade unions, they welcomed the information from the Government that 20 institutions now had an electronic register, and also praised the inspection protocol on freedom of association. They expressed their enthusiasm at the changes to the conciliation and arbitration boards, namely the introduction of measures to guarantee that in future labour justice would be dispensed by the judicial authorities, which would guarantee impartiality. They regretted the fact that the employers’ organizations had not been involved in the discussions that had preceded this constitutional initiative. They trusted that the Government would take immediate steps to guarantee the participation of the most representative employers’ organizations in this important constitutional initiative. Finally, they encouraged the Government to identify, in consultation with the most representative social partners, additional legislative reforms to the 2012 amendment of the Federal Labour Act which would be necessary to comply with the Convention, emphasizing that these should include reforms to prevent the registration of trade unions that could not demonstrate the support of the majority of the workers that they claimed to represent by means of a democratic election process.

Conclusions

The Committee took note of the information provided by the Government representative and the discussion that followed on issues raised by the Committee of Experts.

The Committee noted with interest the proposed reforms to the Constitution and labour law.

Taking into account the discussion of the case, the Committee requested the Government to:

• - continue to fulfil its existing legal obligation to publish the registration of trade unions in the local boards in the 31 states in the country;
• - engage in social dialogue with a view to enacting the President’s proposed reforms to the Constitution and federal labour law as soon as possible and reinforce social dialogue with all workers’ and employers’ organizations including through any additional complementary legislation;
• - ensure that trade unions are able to exercise their right to freedom of association in practice;
• - submit a report to the Committee of Experts on the application of Convention No. 87 both in law and practice.