Individual Case (CAS) - Discussion: 2018, Publication: 107th ILC session (2018)

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



The Government has provided the following information.

The Government of Mexico has duly complied with the provisions of Convention No. 87 and has provided information on this at the appropriate time to the International Labour Organization (ILO) by reporting on its application. Moreover, it has replied to the requests for information from the Committee on Freedom of Association.

Part 1. Civil liberties and trade union rights

Regarding the allegations of the ITUC and IndustriALL concerning violence against trade unionists in the context of a collective dispute in the education sector in Oaxaca

The Government of Mexico regrets and condemns the events but denies categorically that they constitute acts of violence against trade unionists, let alone a violation of ILO Convention No. 87.

In support of our position, we are providing the Committee with reports on the Nochixtlán case prepared by a special commission of the Senate of the Republic – the sovereign and independent authority of the Government of Mexico – and the National Human Rights Commission, an independent advisory body, which were published on 31 August 2016 and 17 October 2017, respectively.

These documents both agree that underlying the events is a conflict of a socio-political nature involving the excessive use of force, which has been recognized and addressed by the Mexican State.

We express our concern at the fact that cases of this type, despite being unrelated to violations of freedom of association and protection of the right to organize, should be used to lend an air of gravity to alleged non-observance of Convention No. 87.

Part 2. Reform of labour justice

This section addresses the points raised by the CEACR in its observations to the Government of Mexico regarding: (i) the communication from the ITUC, received on 1 September 2017, indicating that the constitutional reform was approved without holding any kind of consultations with the social partners; (ii) tripartite consultations on legislative developments relating to the constitutional reform; (iii) developments in the secondary legislation for applying the constitutional reform; and (iv) the impact of the constitutional reform and the establishment of the decentralized body.

(i) Consultations on constitutional reform. The Government of Mexico states that the constitutional reform was presented by the President of the Republic as a result of the analysis “Dialogues for day-to-day justice: Joint diagnoses and solutions” prepared by the Centre for Economic Research and Teaching, one of the most prestigious research centres in the country. Preparation thereof involved nine working groups, including on labour, and the participation of more than 200 specialists and 26 institutions for 14 weeks, with 123 meetings held.

This constitutional reform was unanimously approved in the Senate, while in the Chamber of Deputies it was approved by 377 votes in favour to only 2 votes against, which represents a 99.5 approval rate from all votes cast.

(ii) Tripartite consultations concerning legislative developments relating to the reform. This year, the Ministry of Labour and Social Welfare has held 91 meetings with representatives of workers, employers, academics and associations of lawyers in order to reach the consensus required for approval of the reform. Additionally, the Joint Commissions on Labour and Social Security; Equity and Gender; and Legislative Studies of the Senate of the Republic agreed, on 27 April 2018, to hold public hearings to receive the suggestions, observations and proposals of workers, employers, academics and civil society organizations regarding the preliminary draft opinion for the secondary legislation. These public hearings will be held at four regional offices with the attendance of the labour sector stakeholders.

(iii) Developments in secondary legislation. Since the approval of the constitutional reform, four proposals to reform the secondary legislation relating to labour justice have been presented to the Senate. The first was presented on 7 December 2017 by Senators Tereso Medina and Isaías González of the Institutional Revolutionary Party; the second was presented on 14 December 2017 by Senator Luis Sánchez, of the Democratic Revolution Party; the third was presented on 22 February 2018 by Senator María del Pilar Ortega, of the National Action Party; and the fourth was presented on 24 April 2018 by Senator Alejandro Encinas Rodríguez, an independent.

To continue the legislative process, the proposals were submitted to the Joint Commissions on Labour and Social Security; Equity and Gender; and Legislative Studies, within which the aforementioned public hearings for their discussion and subsequent approval will be held.

At the local level, nine states have modified their Constitutions to bring them into line with the Federal Constitution: (i) Campeche; (ii) Chiapas; (iii) Mexico State; (iv) Guanajuato; (v) Hidalgo; (vi) Morelos; (vii) Nuevo León; (viii) Quintana Roo; and (ix) Sonora. Furthermore, two states (Chihuahua and Hidalgo) have approved laws establishing conciliation centres.

(iv) Impact of the constitutional reform and the establishment of the decentralized body. This is an historic labour reform, which has transformed the system for ensuring labour justice that has been in place for more than 100 years.

Regarding the establishment of the decentralized public body for conciliation in disputes under federal jurisdiction and the national register of trade union organizations and collective labour agreements, the Ministry of Labour and Social Welfare has devised a number of administrative, organizational, technological and logistical tools for its implementation.

As regards the establishment of labour courts, the Federal Judiciary has established the Unit for the Implementation of Labour Justice Reform with a budget of 324 million pesos. At the local level, in May 2017 the National Committee on High Courts and the Supreme Court of Justice agreed on the establishment of a labour committee to monitor the implementation of the reform.

Part 3. Union representativeness and transparency

This section addresses the points raised by the CEACR in its observations and direct request to the Government of Mexico concerning the ITUC communication received on 1 September 2017, which refers to: (i) the large number of “employer protection agreements” and the complicity of the labour authorities in the registration of such agreements; (ii) legislative measures and practices to resolve what the ITUC refers to as the phenomenon of “protection unions and protection contracts” (protection agreements), including in relation to the registration of trade unions; (iii) the publication of trade union registrations and constitutions; and (iv) the application of the labour inspection protocol on free collective bargaining.

(i) “Employer protection agreements”. We reiterate our concern at the fact that observations are being made based on generic allegations that do not refer to specific cases or provide objective details for suspecting the existence of a “customary” practice that undermines the right to freedom of association and collective bargaining, let alone for suspecting that the Government is complicit in encouraging that practice.

The Government of Mexico has continuously reported on the specific steps taken to guarantee trade union representativeness. These measures include: the constitutional reform of 2017 – which was welcomed by the CEACR – and its future implementation; the agreements issued by the National Conference of Labour Ministers (CONASETRA); and the issuing and application of the “Operational protocol on free collective bargaining”. The Government has reported on these measures at every opportunity.

It is important to recognize that, in cases concerning specific situations of alleged violations relating to the existence of “protection agreements”, the Government of Mexico has always provided relevant and timely information, carrying out the appropriate investigations and providing information that will help to ensure labour justice. This issue has been considered within the Committee on Freedom of Association, specifically in relation to Case No. 2694.

In this regard, the Committee on Freedom of Association, in its 382nd Report of June 2017 (paragraphs 128–130), decided not to pursue its examination of the alleged extensive practice of “employer protection collective agreements”. On the contrary, the Committee on Freedom of Association decided to focus exclusively on examining the specific allegations regarding individual sectors or unions and the specific situations in which the existence of protection agreements was alleged.

(ii) Legislative and practical measures to address the issue of protection unions and protection agreements. With the aim of identifying instances of bogus agreements and checking that workers are made aware of collective agreements at their workplaces, a labour inspection protocol on free collective bargaining has been in use since 2016. This protocol allows labour inspectors to verify that collective agreements are being publicized and that labour relations conform to the agreed terms and conditions.

In legislative terms, attention should be drawn to the fact that, as part of the constitutional reform on labour justice, a paragraph has been added to part XVIII of article 123(A), ensuring protection for worker representation.

Furthermore, paragraph XXIIbis has been added to the same article to safeguard the principles of trade union representativeness, along with certainty in signing, registering and depositing collective agreements. This paragraph also ensures that workers are given an individual, free and secret vote when it comes to resolving disputes between trade unions, requesting the conclusion of collective agreements and electing trade union officials.

(iii) Publication of trade union registrations and constitutions. As a step forward, we can report that, by 30 April this year, information on 3,422 trade union organizations (unions, federations and confederations) registered with the federal authorities had been published through the “trade union consultation system”. To date, the system has recorded 254,512 consultations.

With regard to registrations at local level, it is worth noting that the Conciliation and Arbitration Boards are meeting their obligations in terms of transparency through the various mechanisms provided for in section 124(V) of the General Act on Transparency and Access to Public Information. These obligations will rest with the decentralized public body following the adoption and entry into force of secondary legislation, in accordance with the provisions of the constitutional reform to the effect that their actions shall be governed, inter alia, by the principles of transparency and disclosure.

(iv) Application of the labour inspection protocol on free collective bargaining. We can report that, from the date on which the protocol entered into force until April 2018, 196 inspections have been carried out resulting in 528 technical measures, benefiting 68,285 workers.

Part 4. Legislative provisions and practical measures noted by the CEACR

This section addresses the points raised in the CEACR’s comments to the Government of Mexico concerning: (i) trade union pluralism and the re-election of union officials; (ii) measures to amend paragraph II of section 372 of the Federal Labour Act; and (iii) information on the participation of foreign nationals in trade union executive committees.

(i) With regard to trade union pluralism in Government offices and the re-election of union officials, the Government of Mexico reports that, from 2013 to the present, five reform initiatives have been submitted to the Congress of the Union concerning trade union pluralism, together with a further two on the re-election of union officials in civil service workers’ unions, but that so far no decision has been taken. However, it should be noted that the Federal Tribunal for Conciliation and Arbitration, guaranteeing trade union autonomy, has invariably granted accreditation when notified of any change in leadership.

(ii) With regard to the comment on amending section 372 of the Federal Labour Act, the Government of Mexico reiterates that the prohibition on foreign nationals serving on trade union executive committees is not applied in practice. Moreover, no specific case of this has been confirmed and the Government is not aware of any complaint or claim in this regard. On the contrary, some trade union constitutions expressly recognize the possibility of foreign nationals serving on trade union executive committees.

In addition, before the Committee, a Government representative reaffirmed his country’s commitment to social dialogue and described the progress that had been achieved in relation to the requests made by the Committee of Experts. With reference to the allegations of violence against trade unionists in the education sector, in the context of the dispute that had occurred on 19 June 2016 in the municipality of Asunción Nochixtlán, Oaxaca, while regretting and condemning those events, he categorically denied that they constituted acts of violence against trade unionists and amounted to a violation of the Convention. Based on the information gathered by a special commission of the Senate of the Republic and the National Human Rights Commission, which had been published on 31 August 2016 and 17 October 2017, respectively, and regretting that this type of information had been used to attract the attention of the Committee, he emphasized that it was in practice a socio-political dispute, and not a trade union conflict, as neither of the two reports referred to above had noted any link between the acts of violence and any possible restriction on freedom of association, or the fact that the victims were members of a union. With regard to the constitutional reform of the system of labour justice, he welcomed the fact that in its report the Committee of Experts recognized the importance of the reform introduced in February 2017. It was indeed a historic transformation, as it established a new paradigm for labour justice in Mexico, developed through a broad process of consultation. As part of its implementation, it was progressing consistently at the local level in the states of the Republic, many of which had already amended their constitutions with a view to bringing them into conformity with the Federal Constitution, while two other states had adopted legislation for the establishment of their Conciliation Centres. With a view to developing secondary legislation in relation to labour justice, the Senate was examining four initiatives submitted by parliamentary groups with different ideological leanings, and particular attention was being given to ensuring that the secondary legislation was developed in a participatory and inclusive manner, with the social partners and civil society organizations. The Secretary of Labour and Social Welfare had commenced the development of nine forums for the establishment of federal and local decentralized public bodies. At the federal level, one institution would be responsible for the provision of conciliation services which workers and employers would be required to use prior to initiating labour procedures, with a view to the rapid settlement of disputes. The institution would also be responsible for the registration of unions, collective labour contracts and the related administrative procedures at the national level. The new constitutional mandate would also strengthen the Federal Judicial Authority and the Higher Courts of Justice of the states of the Republic, making it easier for them to resolve collective and individual labour disputes through the creation of labour tribunals. With a view to contributing to giving effect to the mandate of the constitutional reform, the Secretary of Labour had initiated a process of the analysis of the labour records of all the Federal and Local Conciliation and Arbitration Boards in each of the 32 states of the country. The Judicial Authority of the Federation, with a view to the creation of labour tribunals, had established the Unit for the Implementation of the Labour Justice Reform. For that purpose, it had been allocated a budget of 324 million pesos for 2018. At the local level, the National Commission for High and Supreme Courts of Justice had agreed to the establishment of a Labour Commission to follow up the implementation of the reform.

With reference to the observations made by the International Trade Union Confederation (ITUC) on 1 September 2017, according to which there were a high number of employers’ protection agreements or contracts and that they had their origins in the complicity of the labour authorities in their registration, the Government representative reiterated his concern at the fact that such observations were based on general allegations, and not on specific cases. He also emphasized the Government’s commitment to labour justice, based on the adoption of new laws and specific action intended to guarantee trade union representativity. He indicated that in cases in which indications had been provided of specific cases of alleged violations relating to the existence of so-called “protection contracts”, the Government had always acted in a cooperative manner, conducting the relevant investigations and providing information to contribute to labour justice. Recalling that the allegations of the ITUC had been made in the context of the Committee on Freedom of Association, and particularly in relation to Case No. 2694, he reaffirmed the Government’s will to continue providing information to the Committee on Freedom of Association in relation to allegations concerning specific situations. The Government would also provide updated information to the Committee of Experts on legislative developments with a view to giving effect to the constitutional reform, and on the practical measures taken to guarantee trade union representativity and free collective bargaining. With regard to the provisions respecting trade union transparency adopted under the reform of the Federal Labour Act in 2012, he indicated that, on 30 April 2018, the registration of 3,422 union organizations, including unions, federations and confederations, had been published in the “Trade Union Consultation System”, and over half a million consultations had been reported. With a view to detecting false contracting practices and ensuring that workers were aware of the collective contract in their workplace, the Labour Inspection Protocol on Free Collective Bargaining had been implemented since 2016. The Protocol allowed labour inspectors to ensure that collective contracts had been published and that workers were aware of their content, and that the employment relationship was performed in accordance with the terms and conditions set out in the contract. In relation to the question of the possibility of trade union pluralism in state bodies and the possibility to re-elect trade union leaders, he indicated that since 2013 five reform initiatives had been submitted to the Congress of the Union in relation to trade union pluralism, as well as two initiatives relating to the re-election of trade union leaders in public service unions, of which three initiatives were under examination by the Congress of the Union. With regard to the last point in the observations of the Committee of Experts, in which the Government was requested to take measures to amend section 372 of the Federal Labour Act with a view to removing the prohibition on foreign nationals from being members of trade union executive bodies, he recalled that the prohibition was not applied in practice, as Mexican nationality was not a requirement for the registration of trade union executive bodies. Moreover, no specific case had been reported in that regard, and there had been no complaints or charges. Indeed, some union by-laws explicitly recognized the possibility for foreign nationals to be members of their executive bodies.

The Worker members stated that the repeated failure by the Government to comply with the Convention had led to the discussion of the case in the Committee on three occasions in recent years. During the most recent discussion in 2016, the Committee had called on the Government to enact the proposed reforms to the Constitution and the Federal Labour Act and to reinforce social dialogue through the adoption of complementary legislation. They recalled that their criticism had focused on protection contract unions, which were employer-dominated unions that had undermined the labour relations system in Mexico. Those unions negotiated “employer protection contracts”, without the involvement or even knowledge of the workers that the union was supposed to represent. Those contracts fixed low wages and “protected” employers from having independent unions in the workplace. Tragically, that had meant that millions of Mexican workers had no effective means to defend their rights at work. Once the protection contract union was established, it was extremely difficult for workers to form an independent union. When workers did attempt to rid themselves of a protection contract union through a recount election, the employer, the protection contract union and the Government often colluded to intimidate the workers through delays, verbal threats, physical violence and dismissal. That situation had remained the same. As the Committee of Experts had noted, in February 2017, the Government had enacted meaningful reforms to the Constitution. Those reforms addressed some of the key criticisms raised by the ILO and the global trade union movement and had given some hope for change. But as the Committee of Experts had also noted, the Government still had to enact secondary legislation. Unfortunately, the proposals that the Government had put forward undermined both the letter and spirit of the Constitution and the Convention. For much of 2017, the Government had worked behind closed doors with business leaders on amendments to labour law, ostensibly to give effect to the constitutional reform – without independent union leaders being consulted during that process. In early 2018, a bill had failed to pass in Congress, but the Government was trying to push through the same legislation during a special session of Congress in June 2018. While the Government had claimed that it was undertaking consultations, the only proposal under consideration remained the Bill rejected by Congress, which showed that the Government had capitulated to entrenched interests, including the protection contract union confederations, whose leaders had introduced the legislation in the Senate. Addressing their concerns point by point, the Workers members first referred to the Conciliation and Arbitration Boards (CABs) which for many years had been widely criticized for their inefficiency, political bias and corruption. The constitutional reform was proposed to abolish the CABs and: (i) transfer the legal functions of the CABs to the judicial branch, foreseeing a process of conciliation by “specialized and impartial” federal and local level conciliation centres before the referral of cases to the courts; and (ii) transfer the administrative functions of the CABs, such as union registration, to the new decentralized and autonomous federal entity whose president would be voted on by the Senate. The current bill before the Senate proposed to create: (i) the new Federal Institute of Labour Conciliation and Registration; and (ii) a new “Technical Council” which would have broad powers over the programme, budget and staff. While the autonomy of the Federal Institute could end the firm hold of the protection contract unions over the union registration process, collective bargaining and collective conflicts, the proposed tripartite control through the Technical Council would include the same protection contract unions that had perpetuated protection contracts through the CABs. Moreover, the Secretary of Labour had stated that the independent labour tribunals would not begin to operate until the CABs had resolved all pending cases. Their number was in the thousands and would take many years to clear. Independent unions would therefore continue to suffer under the existing corrupt system and would have to wait years before the promise of neutral labour justice would be realized. That undermined previous commitments to an early transition to the new constitutional arrangements on labour justice. Additional concerns related to the proposal in the Bill that an agreement would take automatic effect if the Federal Institute did not take a decision to register a collective agreement within 20 days. That would provide employers with a mechanism to register collective agreements that did not comply with new legal requirements. It would allow employers to continue colluding with “protection unions” of their own choosing rather than engaging in good-faith bargaining with independent unions.

The second problem with the draft legislation concerned the so-called recuento procedure. The Bill made it practically impossible for workers to replace unrepresentative unions through a ballot by imposing new evidentiary requirements which had to be satisfied through a lengthy administrative process before a date for a vote was even granted. That would make the process needlessly burdensome. As that procedure was the only means for workers to establish an independent union where an illegitimate union already existed, the new process would ensure that undemocratic unions could continue to deny workers the representatives of their choice. As the new Institute would be controlled by employers and protection contract unions, workers also had good reason to be concerned that employers would retaliate and dismiss them. Thirdly, in Mexico the General Act on transparency and access to public information provided for the publication of trade union registration certificates and their statutes. Workers and the public could access information about unions, including their internal structure, leadership and any existing collective agreements. Such transparency was essential to ensure workers could access information about the entities that claimed to represent them, and any agreements those entities might have with employers. It was a vital tool in the fight against protection contract unions. The Government had reported that it had made progress in this area, claiming an 85 per cent compliance rate. If true, that would be a positive development. But the Bill would have the effect of significantly weakening those transparency provisions, including the requirement to disclose information about union registration and existing collective agreements, and would continue to deprive the vast majority of Mexican workers covered by collective agreements of the right to obtain a copy. Fourthly, under the constitutional reform, workers had to approve collective agreements by a secret ballot. That measure had been introduced to ensure agreements could not be signed without the consent or knowledge of the workers concerned. But the proposed implementing Bill would not require inspectors to verify that workers had approved the collective agreement by a secret ballot. Instead, the Bill contained a vague requirement that entities claiming to represent the workers should prove there was support, but failed to set out any specific criteria. The proposal also gave the Institute broad discretion to decide whether or not there was evidence. Those provisions were all the more worrying as current labour law provided that collective agreements were automatically renewed if neither party sought modifications. Those rules would apply equally to the protection contracts, which could thus evade the minimal requirements regarding representation. But the issue of protection contract unions and the flawed secondary legislation were not the only problems. As the Committee of Experts had once again highlighted, the prevalence of anti-union violence was a serious concern. And new acts of anti-union violence had occurred since the Committee of Experts had last met. In November 2017, mine workers had gone on strike to demand their right to join a legitimate and democratic union. Dozens of armed police had taken over the mine. An armed group had attacked the strikers and killed two trade unionists on mine property. In January 2018, a labour activist who had been travelling to meet the strikers had been beaten and threatened with further violence if he continued to advocate a new trade union and a new contract. He had been murdered later that month. Finally, the 2012 amendments to the Labour Act had greatly expanded the use of outsourcing, although the Act provided that companies could not outsource a worker who was assigned work that was a core function of the company. Although illegal, the Government had done nothing to stop such practices. The use of outsourcing was a common tactic to prevent workers from forming a union or to bust unions by replacing the workforce with contracted workers. The Worker members urged the Government to withdraw the existing proposal. As national elections were imminent, the next Government should decide that issue following consultations so that the views of all stakeholders were taken into consideration.

The Employer members recalled that the case had already been examined on three occasions, two of which were in 2015 and 2016, when emphasis had been placed on the progress that was being made by the Government with the expectation that the constitutional reform would be adopted. The reform had been completed, which had produced a change. The Conference Committee was examining the case of the application by Mexico of Convention No. 87, but the country had not ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). There were aspects of the case that were related to freedom of association and the establishment of unions. Nevertheless, the Conference Committee, with reference to the observation of the Committee of Experts, needed to be careful in its examination not to provide guidance on an instrument that had not been ratified. The same applied to Articles 2 and 3 of the Convention, which were fairly general provisions, on which the Committee of Experts had entered into a series of details that could be considered to have gone beyond the scope of those provisions. Article 2 provided that workers, without distinction whatsoever and without previous authorization, had the right to establish and join organizations of their own choosing, subject only to the rules of the organization concerned. Article 3 provided that workers’ organizations had the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organize their administration and activities and to formulate their programmes. That was the framework for the discussion of the case. In the first place, the complainant organizations in the present case were of an international nature, and were not the organizations of Mexican workers. It should therefore be borne in mind that their vision of the situation in the country might be broader than the manner in which the social partners acted at the domestic level, with particular reference to trade unions. With regard to the subject of public liberties and trade union rights, the Employer members rejected any action that endangered human life. Nevertheless, within the framework of the ILO, there needed to be a connection with freedom of association. In its response, the Government had indicated that two special commissions had found that the acts in question had no union origins, but were of a socio-political nature and involved the excessive use of force, which had been recognized and dealt with by the Government. As such, it was a case that, while deplorable from the viewpoint of human life, should not be examined in greater depth or detail by the Conference Committee, the Committee of Experts or any other ILO supervisory body.

Secondly, with regard to conciliation, arbitration and labour justice, the constitutional reform established that it would be the corresponding branch of the public authorities that would be responsible for a series of elements, for which reason the Committee of Experts had noted “with satisfaction” its adoption and entry into force. In that respect, it was important to recall the significance of “noting with satisfaction”, which occurred fairly rarely and was of great relevance for the Organization. The Committee of Experts noted with satisfaction cases in which governments had taken measures through either the adoption of new legislation, an amendment to the existing legislation or a significant change in the national policy or practice. The Committee of Experts also expressed satisfaction when it was indicating to governments and the social partners that a particular matter had been resolved and that it could provide a model or example for other countries. The reform offered legal security for the following reasons: (1) labour justice would be imparted by bodies of the federal and local judicial authorities; (2) conciliation procedures would be more flexible and effective; (3) the federal conciliation body would be a decentralized institution; and (4) new legislation would be adopted on the procedures and the decentralized bodies of the conciliation service. As indicated by the Government representative, that was what was happening in Mexico, where the Congress was examining a series of legislative initiatives. It was undoubtedly good for there to be consultations on all of those legislative changes. In the previous conclusions of the Conference Committee on the case, the call had been made to establish broad social dialogue on the subject. In that regard, the Government had provided information on the decision by Congress to open up participation through four regional fora with broad participation, and that the fora that had been adopted had been subject to widespread discussion. The Employer members trusted that the reforms would continue to be undertaken in an appropriate manner.

Thirdly, with reference to trade union representativity and protection contracts, they indicated that it was necessary to be very prudent. It was one thing to establish unions which could be considered to be protection unions, that is which enjoyed the prerogative of exclusive collective bargaining, but collective negotiations for protection were quite another matter. Reference should not be made to the latter subject, as it was typically covered by Convention No. 98, which had not been ratified by Mexico. Moreover, the Committee of Experts at the time had noted with interest a series of proposals in light of the amendment of the Federal Labour Act in 2012. In that regard, the Committee of Experts had requested the Government to indicate why it had not provided more detailed information. Although the Government had not replied on that point, and should do so in its second intervention, it had perhaps not done so because it had not ratified Convention No. 98. The Employer members emphasized that great care was needed with the approach adopted and did not agree with the views expressed by the Committee of Experts when it noted with concern the observations made by the ITUC on other matters raised in general terms, concerning which it would be interesting to be provided with greater detail, if indeed additional information pointed to a different conclusion. However, in the meantime, there were no grounds for a request for further information on the subject. With regard to the publication and registration of trade unions, the Government indicated that there was a new information system, which provided detailed figures of the number of unions in Mexico. The Government had also provided an adequate response in document D.10 to the request that had been made at the time. With reference to trade union pluralism and the re-election of union leaders, the Committee of Experts had referred to legislative matters which could be considered not to be in conformity with the Convention. Nevertheless, it was noted both in the comments of the Committee of Experts and the reply by the Government that the case law of the Supreme Court of Justice, and the practice followed, meant that the provisions in question were not applicable. The situation bore some similarity with the situation of obsolete ILO standards which had not been abrogated. Some standards had been abrogated the previous year, and others this year. And yet the Cartier Working Party had identified around 65 obsolete standards which were in force, but not applicable. Accordingly, the concept of applicability, which was entertained in the Organization, should also be taken into consideration in the case of member States, as the Government had said. There would be no violation of freedom of association if certain existing provisions were not applied, as recognized by the judicial authorities in Mexico. That had also been recognized by the Government, which had indicated that the freedom to elect trade union representatives, including foreign nationals, existed and that there had been no complaints or specific cases in that regard. The Government had also indicated that there were unions which recognized in their by-laws the possibility to elect foreign nationals as representatives. In that regard, the Employer members questioned the need to raise concerns in relation to legislation that was not applicable. If it was not applicable, the Committee could be certain that in Mexico that particular freedom was broadly permitted, in accordance with the views of organizations such as the ITUC, IndustriALL and the Committee of Experts when it examined such cases. For that reason, the requests made concerning the number and positions of foreign nationals who were members of unions could be considered excessive, as the Government had already indicated that there had not been a single complaint. The subject had probably been raised for the sake of international observers, but there were no grounds for it in practice, as no difficulties had arisen in that regard. The Employer members considered that, in the analysis of the case, there were points that had been resolved and would have merited being noted with satisfaction. They were of the view that the policy adopted by the Government in its legislative changes was correct and that the expectations had been met on matters on which, a long time ago, the Committee had expressed concern, as the Committee on Freedom of Association had done in Case No. 2694.

The Employer member of Mexico expressed appreciation for the information provided by the Government on the issues raised by the Committee of Experts and, regretting the lack of objective information provided by the Worker members, said that his country was free of harassment and dismissals, that there were over 20 million workers in the formal economy, collective bargaining existed and, despite challenges, it enjoyed labour and social peace. The reform had been considered satisfactory by the Committee of Experts and had not generated any open opposition at the national level. In 2012, the Federal Labour Act had been amended and the constitutional reform had been undertaken between 2015 and 2017. Regulations were being examined in the Senate on the basis of various initiatives submitted by various groups with different views. In accordance with the constitutional framework, discussion and consultation forums had been organized and it had been agreed to hold public hearings, thereby engaging in social dialogue and complying with the call made by the Conference Committee in 2016. Moreover, complex and far-reaching issues had been included in relation to labour law, trade union transparency and collective bargaining, and secret ballots for workers. The changes that were under way required efforts to be made in the areas of legislation, the budget and infrastructure, and training and capacity building. The registration of trade unions and collective agreements would be the responsibility of a decentralized public authority headed by a person proposed by the executive authorities and approved by the Senate, thereby ensuring full independence. Similarly, conciliation bodies would be set up in federated bodies for the effective resolution of disputes, in accordance with the Convention. The replacement of conciliation and arbitration boards with tribunals under the judicial authorities was in line with a proposal made by the Conference Committee. The constitutional reform had set aside a period of one year, which had now passed, for regulations to be adopted. However, some elements had come into force the day after the promulgation of the reform, including the obligation to grant accreditation to workers’ representatives for the purpose of concluding collective labour agreements and the provisions of Article 123(XXIIbis) of the Constitution. That showed that the procedures and requirements established in law to safeguard freedom of collective bargaining and the legitimate interests of workers and employers should guarantee: (a) the principles of the representativity of trade unions; and (b) certainty in the conclusion, registration and deposit of collective agreements. In addition, workers’ ballots would be individual, free and secret for the resolution of disputes between trade unions, as well as requests to conclude collective agreements and the election of union officials. The judicial authorities and the reform process would abide by the established constitutional precepts. The situation should serve as an example for other countries and, although it would be desirable to conclude the legislative process, its complexity meant that it was still a work in progress. The Government should be encouraged to finalize what remained pending and the achievements made should be recognized. The case should be recorded in the Committee’s conclusions as a case of progress.

The Worker member of Mexico emphasized the importance of recalling the context in which Mexico’s labour reforms were being discussed. It should be emphasized that two significant reforms had been made: the labour reform of 2012 and the constitutional reform that had entered into force in 2017. The latter was the result of a series of prior consultations carried out by the Centre for Economic Research and Education, at the explicit request of the federal executive authorities, involving legal experts, academics and a representative sample of civil society. However, in the absence of the participation of workers’ organizations, which had not even been invited to participate, their views had not been taken into account. As result of the consultation, in April 2016, the Office of the President had submitted the corresponding legislative initiative, known as “day-to-day justice”, to the Congress of the Union. It entailed substantial changes to the Constitution, particularly on labour matters. He recalled that, in his statement in 2016, he had rejected the reforms and expressed concern at various elements thereof: (a) the transfer of labour jurisdiction to the federal or local judicial authorities, thereby losing the social balance offered by tripartism; (b) the implementation of conciliation as a compulsory and prejudicial process through specialized independent conciliation centres; and (c) the establishment of a decentralized institution responsible for registering collective agreements and trade unions and performing conciliation functions at the federal level, with the head of the institution being appointed by the federal executive authorities. As the final outcome of the series of amendments, on 13 October 2016 the constitutional reform had been adopted unanimously, prompting an unprecedented sea change in Mexican labour law. The labour reform proposed most recently in Mexico was a consequence of that constitutional reform. Attention should be drawn to the consultations announced on 27 April 2018 by the Senate. Trade union organizations and their leaders had the role of moving in a responsible and informed way towards the new model of labour justice to give those they represented real legal certainty of the defence of their rights. In conclusion, he urged the Government to offer every guarantee that the Federal Labour Act would be the product of dialogue and agreement among the tripartite partners.

Another Worker member of Mexico recalled that the amendment to article 123 of the Constitution had entered into force on 24 February 2017. The reform took into account several recommendations. For example, the labour justice system was no longer in the hands of the executive authorities following the abolition of conciliation and arbitration boards and the establishment of labour courts. Mandatory conciliation had also been introduced prior to referral to labour courts. Similarly, a decentralized body had been established at the federal level which was responsible for ensuring conciliation, the registration of all collective labour agreements and trade unions, and all related administrative procedures. However, he was concerned by the delay in amending the Act implementing article 123, the deadline for which had been 24 February 2018. The deadline had expired without the Government having paid due attention to it, and there was therefore a great deal of uncertainty concerning the labour justice system and the current situation. In April 2018, the Senate had adopted an agreement with the social partners, although it had done so after the deadline. It was a matter of concern that the Government had not adopted the necessary measures to initiate the legislative amendment process. Finally, he called on the new Government, which had been elected through a democratic and popular vote, to adopt the necessary measures to bring the labour legislation into conformity with the principles of the Convention and to ensure that effect was given to the observations of the Committee of Experts with a view to eliminating the malpractices affecting Mexican workers and bringing an end to the persecution of trade union leaders and the death of workers.

Another Worker member of Mexico indicated that, following almost 30 years of the implementation of the neo-liberal policies of financial institutions such as the International Monetary Fund (IMF), World Bank (WB) and Trilateral Commission, the labour conditions of workers throughout the world had become more precarious, and Mexico was no exception. He denounced the abuse of outsourcing, which not only undermined the application of the Convention, but also the Mexican Constitution and human rights, as it negated the right to organize, collective bargaining and the right to strike. The national Constitution provided that Mexican nationals had the right to health, nutritious food, housing, culture, sport, education and socially useful work. Outsourcing violated those rights. There were national owners of micro, small and medium-sized enterprises who complied with all their obligations respecting work-related benefits and social security, but others evaded them. Such abuse caused social problems, which would only get worse in the near future, especially in the case of pensions since, if social security contributions were not paid, future generations would not have the right to housing, health or a decent pension. Outsourcing also involved processes being carried out in the name of another company to ensure that, in the case of a labour dispute, workers had no protection when claiming their legal entitlements.

The Government member of Paraguay, speaking on behalf of the vast majority of Latin American and Caribbean countries welcomed the information provided by the Government in recent years regarding the action taken and measures adopted to address the observations of the Committee of Experts. In 2016, the Committee of Experts had noted with satisfaction the adoption and entry into force of the constitutional reform, which established, among other measures, that labour justice was the responsibility of the judicial authorities, and was no longer dependent on the executive authorities. It also had the objective of strengthening conciliation machinery and the creation of an autonomous body responsible at the national level for the registration of collective agreements and trade unions. The Government had also provided information on the consultation processes and round tables that had been held with a view to harmonizing the legislation to give full effect to the constitutional reform, and particularly the approval by the Senate of the holding of public hearings to gather suggestions, observations and proposals from workers, employers, academics and civil society organizations on the draft secondary legislation. Taking into account the willingness expressed and the results achieved, she wished the Government every success in its ambitious reform process and in the historic transformation of the administration of labour justice.

The Government member of Panama endorsed the statement of the Government member of Paraguay and expressed appreciation of the efforts and interest demonstrated by the Government in continuously providing updated information on compliance with the Convention. Emphasis should be placed on the judicialization of labour procedures, which had been the responsibility of the executive authorities in Mexico. The observations of the Committee of Experts were relevant, as they assessed positively the progress made by the Government in terms of labour justice, which was in line with ILO principles. The transformation had been introduced taking into account the tripartite partners in the country, thereby demonstrating the relevance of social dialogue as an essential tool for freedom of association and the pursuit of social justice. He reiterated his support for the Government in the process of ensuring continuous improvements, and emphasized the importance of ILO tripartism for the achievement of the common good.

An observer representing the International Trade Union Confederation (ITUC) said that in February 2017 a decree had been issued to amend article 123 of the Constitution with regard to labour justice, which was the most important development in the 100 years since the Constitution had been in force. In 2016, the Committee had offered technical assistance to the Government and had called on it to engage in social dialogue for the preparation of secondary legislation. However, the Government had failed to promote social dialogue and to request technical assistance. Consequently, the senators who were members of the Confederation of Workers of Mexico (CTM) and the Revolutionary Confederation of Rural Workers (CROC) had put forward a reform initiative, which had been considered unconstitutional and which would derogate from Mexican labour law, as it did not regulate all of the matters envisaged in the constitutional reform. The initiative had proposed to restore the false tripartism of the conciliation and arbitration boards and to grant judicial powers to decentralized administrative bodies, including hearing cases on the right to strike, for which only jurisdictional bodies were responsible in accordance with article 123(XX) of the Constitution. Furthermore, the Senate had also issued a draft decree to approve the initiative. The previous week, the Senate had called on the alleged social partners to give their opinion on the decree. In that way, other initiatives put forward by other senators for the appropriate regulation of the constitutional reform had not been considered. To achieve social justice and peace, it was necessary to replace the corrupt legislative process relating to the secondary reforms that was being followed by the Government.

The Government member of Honduras welcomed the action and measures adopted by the Government in the field of labour justice since February 2017 as part of the ongoing reform process. However, he expressed concern with regard to the cases that, despite not appearing to be violations of the Convention, could be considered acts of violence against trade unionists. Finally, he urged the Government to continue promoting new inter-institutional dialogue mechanisms, in accordance with the Convention and workers’ fundamental rights, to guarantee respect for freedom of association in the country.

The Worker member of Germany stated that the progress referred to by the Government in the implementation of the Convention was merely progress on paper and that little had changed in practice. The constitution of independent unions and their work was alarmingly hampered by a fatal combination of: (i) an arbitrary registration procedure; (ii) the prevalence of protection contracts; and (iii) the absence of publication of both the registration of unions and the agreements concluded. The consultation and arbitration boards (CABs), which were still the competent authorities at the federal and state level, were not independent and impartial, as demonstrated by their composition, and were always finding new ways to obstruct the registration and work of independent unions. Protection contracts were negotiated without the knowledge of workers, in some cases including German companies, even before a plant had been built or a company had started its work. If a company was already in the hands of a so called protection union or if a protection contract existed, the CABs had many opportunities to reject applications from independent unions. To enforce a real collective agreement against a “protection union” was practically impossible. The process was overshadowed by a lack of transparency, bureaucratic hurdles, lay-offs, threats, intimidation and violence. In order to demonstrate progress towards compliance with the Convention, it was no longer sufficient for the Government to refer to lengthy reform processes, discussions between the various stakeholders and secondary legislation that had not yet come into force and which was designed to counteract the fundamental demands of the constitutional reform. She therefore called on the Government to comply fully with the findings of the ILO supervisory bodies and to that end: (i) to demonstrate, by means of concrete actions, how it ensured the swift and independent registration of trade unions; (ii) provide evidence of the publication of collective agreements, registration, recognition and other trade union statutes; (iii) explain in detail the specific measures taken to address all the problems arising in connection with the protection contracts (not only measures on paper); and (iv) consider a statutory obligation for employers to make the applicable collective agreement known in the workplace.

The Government member of Algeria expressed support for the Government’s efforts to reform the labour justice system, strengthen conciliation bodies and promote the right to organize and collective bargaining. All the necessary measures and procedural guarantees had been adopted to ensure compliance with fundamental rights, including freedom of expression and association, and the powers of the labour inspection system had been strengthened. There was no evidence of violations of freedom of association. He welcomed the progress made in strengthening the existing national instruments to give full effect to the constitutional reform and hoped that the Committee would take into account the progress achieved.

The Worker member of the United States said that CABs impeded the freedom of association of workers. One example was the strike by the independent union of miners initiated in 2008, on the legality of which the federal CAB had never ruled. In 2013, a company union run by the owner of the mine had applied for collective bargaining rights and had occupied the mine in an effort to end the strike. Rather than protecting the strike, the CAB had accepted the illegal application of the company union, and had allowed elections in 2017, in which both the employer and company union had submitted identical lists of eligible voters to the CAB. The lists had included not only miners recruited by the company to vote in its favour, but also workers who should not have been eligible to vote (including retired miners, those who had received severance pay and even miners who had died). In spite of the irregularities (collusion between company union and the employer as evidenced by the identical lists, and the failure to demonstrate who was an active worker eligible to vote), the CAB had allowed the election, which the company union had won. In January 2018, however, a court had reversed the election and had forced the company union to abandon its claim for collective bargaining rights, finally offering some protection for the lawful strike by the independent union. That example demonstrated the problems with the CABs: (i) they were not impartial, and were actually biased against independent unions; and (ii) they had close ties with both protection unions and employers. At the time when the federal CAB had decided to allow the second election, the secretary of the board for collective matters was a person who had formerly been employed as an attorney for the company and was currently in that position again. In addition, workers had to wait years before being afforded protection of their freedom of association rights. As promised in the constitutional reform, the CABs had to be replaced by a labour justice system that was fully independent of the executive branch and allowed workers full freedom of association. Those changes had to occur before any renegotiated North American Free Trade Agreement (NAFTA) or other free trade agreements, or even Mexico itself, could comply with the Convention.

The Government member of Uruguay supported the statement made by the Government member of Paraguay and highlighted, among the measures adopted by the Government, the procedural labour reform of 2012 and the promotion of a reform process. The full implementation of such laws took time and generally required several amendments to achieve the intended objectives. The labour reform had led to a reduction of more than 60 per cent in the normal duration of labour proceedings, which represented a clear benefit for complainants, who had access to more rapid and efficient justice. However, some minor aspects of the reform still needed to be adjusted. It was reasonable to request an adequate time frame for its full adaptation and implementation. In that regard, and taking into account Uruguay’s experience in that area, he offered technical cooperation to the Government and encouraged it to continue along the path of social dialogue.

The Worker member of Colombia criticized Mexico for the violations of freedom of association, especially those arising out of the existence of employer protection agreements or contracts. All of the ILO supervisory bodies agreed that employer protection contracts constituted a violation of rights. The gravity and repeated nature of those violations required drastic action by the ILO. The legal reform of 2012 and the constitutional reform of 2017, instead of eliminating a practice which in itself distorted trade unions and the objectives of bargaining, had reformed registration, publication, ballots and other provisions. Consequently, five years after the legal reform and 15 months after the constitutional reform, conciliation and arbitration boards were continuing to register protection unions and employer protection contracts. The Government needed to act on the recommendations and observations of the ILO supervisory bodies with regard to protection unions and employer protection contracts and stop such practices being possible through laws adopted following genuine and effective consultations with the representative organizations of workers and effective control by the authorities to prevent non-democratic trade unions and simulated negotiations.

Another Worker member of Colombia emphasized that all factors that restricted freedom of association, especially in relation to the Convention, were entirely unacceptable. Trade unionism free from any kind of pressure was crucial for a country’s development. Consequently, he requested more detailed information on protection contracts from the social partners in Mexico. He also urged the Government, together with the trade unions and employers, to consult on the Federal Labour Act in order to avoid manipulative practices that were detrimental to the Convention.

The Government member of Brazil welcomed the progress made by the Government, as recognized in the report of the Committee of Experts, in the modernization of the administration of labour justice, as well as the support expressed by the Chamber of Deputies and the Senate for the constitutional reform. He also emphasized the legislative and practical measures adopted to resolve “the issue of protection unions and protection contracts” and highlighted the ambitious consultation processes and round-table meetings carried out by the Government to give full effect to the constitutional reform through secondary legislation. With regard to the representativity of trade unions and transparency, he indicated that observations had been made on the basis of general allegations that did not refer to specific cases. It was unacceptable for the supervisory bodies to make comments that were not objective. Furthermore, Mexico had not ratified Convention No. 98, so the Committee could not examine comments about the country in relation to that Convention. The discussions of the Committee should be limited to the technical aspects of the application of the Convention. In conclusion, he encouraged the Government to continue pursuing its objectives of labour reform, in line with its international commitments.

The Worker member of Argentina noted that on several occasions the Mexican Government had provided information to the Committee on progress that had not been achieved in practice. The Federal Act on Government employees was an example of those delaying tactics. The Act had been adopted in 1963 and five years later the Committee of Experts had noted that the Government was reconsidering the aspects of the Act that were contrary to the Convention. Fifty years later, those aspects of the Act were still in force. The Government had noted that the provisions in question were not applicable under the case law of the Supreme Court of Justice. However, the findings of the Court did not mean that the sections of the Act that were contrary to the Convention had been repealed and workers continued to lodge complaints in that regard. That situation was a clear example of a persistent violation of the Convention. Violations of freedom of association also affected education workers who were combating the “education reform” that restricted freedom of association and bargaining. Those protesting against the reform were subject to repression, as had been the case in the state of Oaxaca in 2016. That repression had led to the death of ten people, the detention of 30 and 100 injuries. And yet, those acts were still unpunished, as was the case of the disappearance of 43 students from Ayotzinapa. The Government should take specific action to adapt national law and practice to the Convention. Furthermore, the Committee should urge the Government to cease its decades-old practices that violated freedom of association.

The Worker member of Paraguay noted that some of the recommendations of the Committee of Experts had been taken into account by the Government, while others had not. Mexico had undertaken constitutional reform in relation to labour, as a result of which the conciliation and arbitration boards had disappeared and labour courts had been established. However, the deadline to amend the Act regulating those bodies and courts had passed and the Mexican Congress had suspended the reform process to hold consultations with the partners. The process was not being implemented within the constitutional time frame. He recalled that the reforms needed to guarantee the representativity of trade unions and transparency in the conclusion, registration and deposit of collective labour agreements to ensure that they were concluded by organizations that genuinely represented the interests and rights of workers. Mechanisms were needed that facilitated the exercise of union activities and the right to strike. He therefore called on the Mexican Government and Congress to adopt, through dialogue with the most representative organizations of workers and employers, the necessary measures to bring the legislation into conformity with the principles set out in the Convention.

The Worker member of Canada regretted the widespread use of illegitimate collective bargaining agreements signed between an employer and an employer-dominated union with the blessing of the government authorities. Workers trying to organize independent and democratic trade unions were harassed, threatened and assassinated: in November 2017, Victor and Marcelino Shaunitla Peña had been murdered while participating in a work stoppage at a gold mine, refusing to join a union imposed upon them by the company. This had shone the spotlight on Mexico’s corrupt and anti-democratic labour relations system of protection contracts. In January 2018, Quintin Salgado had been murdered after being threatened if he kept advocating a change of unions. There had been no investigation of these murders. Also in January 2018, after receiving threats from the corporate union, Eli Manuel Robelledo, a mine worker, had seen his house burned down. A few days later, another worker, Monica Lopez, had been beaten and left unconscious. No investigations had been carried out. She recalled that rights of workers’ organizations could only be exercised in a climate free from violence and that it was the responsibility of governments to ensure that this principle was respected. The free choice of workers to establish and join organizations was so fundamental to freedom of association as a whole that it could not be compromised by delays and simulated reforms. She called on the Government to reform and enforce the rule of law in order to protect workers’ demands for democratic unions, better wages and working conditions, and health and safety at work. Mexico was under the obligation to change its law and practice in order to restore workers’ rights, in compliance with the Convention, before any free trade agreement could be signed.

An observer representing the International Transport Workers’ Federation (ITF) stated that protection contracts presented the most serious obstacle to the exercise of freedom of association in Mexico. The Conference Committee, the Committee of Experts and the Committee on Freedom of Association had all urged the Government to effectively abolish the protection contract system but there had been no real change. That system deprived workers of any right to safe working conditions, labour inspections, compensation or social security and was designed to dismantle genuine and democratic trade unionism. Unfortunately, this had been achieved in the road transport and port sectors. The constitutional reform required the enactment of secondary legislation. However, the proposed legislation undermined the spirit of this reform and contained numerous provisions that would negatively affect workers, including the amendment to section 388 of the Federal Labour Act. Unions representing workers in the aviation sector had been frustrated by protection unions that had claimed to represent all workers and sought to negotiate a single agreement. The proposed amendment to section 388 would exacerbate that problem in prohibiting professional unions from negotiating separate agreements with a common employer. That was inconsistent with the obligation to promote free and voluntary collective bargaining. The ILO supervisory bodies had made it clear that in order to satisfy trade union plurality where a single agreement policy was in place, minority or professional unions should at a minimum be able to conclude collective agreements on behalf of their members. That principle was particularly important in Mexico due to the impact of protection contracts. The speaker called on the Government to withdraw the proposed secondary legislation to bring its labour laws into conformity with the Convention.

An observer representing IndustriALL Global Union indicated that protection contracts had been a vital part of the state policy and economy for a long time. This model had spread to cover all industrial sectors: it guaranteed the lowest labour costs and prevented any negotiation with workers. Following the privatization of the energy and gas sectors, the concession and exploration contracts contained specific clauses mentioning the chosen union, thus depriving workers of any choice. Despite promises on the international scene, the Mexican Government had not done anything to eradicate these protection contracts. Every new investment announced, be it in the auto sector, energy, electronics, textile, comes with “the cherry on the cake”, a protection contract already signed with the accomplice corporate unions, long before the plant was built and any worker appeared. The previous week, approximately 50 women workers in the textile sector had been dismissed for defending their rights: the management had said that there would be no other union than the one already in place in the plant. Only the official corporate unions could obtain a collective bargaining agreement: a request for union elections by the union “Mineros”, an affiliate of IndustriALL, had been blocked for 6 years by the government authorities, the company and the protection contract union. And even when it had won elections in a mining site in April 2016, the company and the protection contract union had refused to abide by the official ruling published and continued to occupy the union facilities. She concluded that the Government had the obligation to respect Mexican workers’ rights and to implement freedom of association.

An observer speaking on behalf of the Confederation of University Workers in the Americas (CONTUA) said that there were persistent and serious government practices that were in violation of the Convention. Since 2015, the Committee had been asking the Government to resolve the issue of protection unions and to include the social partners in discussions on the subject. In 2017, the Committee had once again requested the Government to consult the social partners as serious concerns had been raised regarding the unclear measures that were being implemented. Again today, the Government needed to provide explanations to the Committee on why it was repeatedly failing to hold authentic, institutionalized and permanent tripartite consultations with the context of the transition process of the constitutional reform of the labour justice system, which was in violation of the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144). The obligation to hold tripartite consultations was the responsibility of the Government, which could not invoke national law to justify non-compliance with the Convention. Similarly, it could not claim to have organized consultations for the establishment of social dialogue with the most representative organizations of workers in view of the habitual, persistent and repeated corporative and anti-democratic trade union practices which were contrary to the interests of the workers. Consultations of that type did not reflect the real labour situation in Mexico. According to the official journal of the Senate, public hearings were to be held in May and June 2018, but in practice no public hearings were envisaged in the four regional offices. The hearings were supposed to contribute to the initiative submitted by the Government on 7 December 2017, through the CTM and the CROC, overlooking the other three legislative initiatives that had also been put forward, without any official measures being taken to convene the meeting. Proof of the Government’s deceitful practices was to be found in the request made by the President of the National Union of Workers (UNT) and the Secretary-General of the Union of Workers of the National Autonomous University of Mexico (STUNAM) who, in May 2018, had requested the Senate to indicate the place, date and time of the public hearing on the preliminary draft decree on the labour justice system, to which no reply had yet been received. The initiative would bring back the false system of tripartism, as it proposed the establishment of a Federal Institute of Labour Conciliation and Registration, a government body that would be composed of the following 12 members: four Government representatives, four worker representatives and four employer representatives. The institute would therefore reaffirm total corporative control, as four of the 12 members would be from national workers’ organizations, but only from those that were supposedly “most representative”. In other words, the Government of Mexico was persisting in the reinforcement of a protectionist and undemocratic type of unionism, which favoured some sectors while excluding the representation of others, which was contrary to the fundamental principles of the ILO, and particularly the Convention. Such actions perpetuated a system that undermined the well-being of Mexican workers, through the promotion by force of law of practices that were in violation of freedom of association. Finally, he urged the Government to ratify Convention No. 98 immediately.

The Government representative emphasized that many of the interventions had focused on the process of labour reform. Although the part of the constitutional reform that had already been adopted involved responsibilities for the various actors, including the federal Government and state governments, it was also true that the implementation of the secondary legislation would require the adoption of texts to enable both the judicial authorities (in relation to labour justice) and the decentralized body and conciliation centres to fulfil their functions. That process was under examination by the Senate, through four initiatives, which had not been rejected at the parliamentary level. The decision of the Senate, at the petition of many groups in Mexico, had been opened up for consultation, not only through the work of the legislative commissions, but also through the holding of consultation meetings. The measures taken to convene such meetings were to be decided on by the Senate. Nevertheless, the Government was committed to holding tripartite consultations with a view to the preparation of the secondary legislation, as a minimum level of agreement needed to be achieved in respect of that legislation to carry out the reform under the best conditions. For that purpose, during the course of 2018, the Secretariat of Labour, under the leadership of the Secretary of Labour, had held over 91 meetings with organizations of employers and workers. The will of the Government and of the State was to develop consensus with workers, employers and civil society organizations on the most appropriate approaches to the labour reform, taking constantly into account the rights of workers. However, he recalled that another fundamental aspect of the discussion lay in the reiterated references to the existence of protection agreements or contracts. Mexico had been cooperative in the specific cases in which problems of that type had arisen. In that regard, he emphasized that in the constitutional reform the issue of the origins of protection contracts had been taken into consideration and their relation to the Federal Labour Act, thereby avoiding problems such as recourse to strike action through the use of extortion. With reference to the registration of unions, he indicated that, in contrast with the indications provided by participants in their interventions, the federal authorities were currently responding to applications for registration within three or four days, which had resulted in the greatest increase known in Mexico in the number of union associations. There was also an online system at the federal level which included over 3,400 registrations of associations. In conclusion, he gave thanks to the members of the Group of Latin American and Caribbean countries for the efforts that had been made, which offered an incentive to continue making progress and to try and achieve as much as possible, within the context of compliance with the provisions of the Convention.

The Workers members welcomed the willingness of the Government to work to bring its law and practice in line with the Convention and hoped that this would be translated into concrete action. It was nevertheless regrettable that the Government did not accept the serious shortcomings of its current regulations and legislative proposals with regard to the Convention. The numerous problems encountered were rooted in the protection contracts system. In response to the comments made by the Government that it had for many years submitted detailed information and evidence to the Committee of Experts and the Conference Committee, the current discussion had once again provided specific examples demonstrating the impact of protection contract unions. That system had for many years seriously impeded the exercise of freedom of association and the freedom to bargain collectively. They challenged the statement that the issue of protection contract unions did not fall within the scope of the Convention. In fact, that phenomenon was closely linked to both Conventions Nos 98 and 87. The existence of protection contract unions constituted an obstacle to the establishment of free and independent unions. A member State was not in compliance with the Convention if it put in place or retained regulations which prevented workers from challenging the presence of protection contract unions and which restricted their ability to elect democratic and independent unions of their choice. The ability for workers to form and join a trade union of their choice and the ability of that trade union to represent, defend and promote the interests of its members through collective bargaining was at the heart of the Convention. The Government therefore needed to take all the necessary measures to put an end to the use of protection contracts. In that respect, they made a number of recommendations to the Government: (i) they invited the Government to submit information on the proposed legislation aimed at implementing the constitutional reform. It was essential for there to be consultation with all the social partners on that legislation, including independent trade unions. The Bill significantly affected the exercise of the right to freedom of association and its impact would be felt throughout the country and indeed the region; (ii) as the CABs had been incapable of guaranteeing freedom of association and the right to collective bargaining, they should be replaced by genuinely independent and impartial bodies to settle labour disputes and register unions and their collective agreements. The Government should also provide information on how it would guarantee the establishment of truly independent institutions, as well as the measures planned to ensure an efficient transition from the CABs to new independent bodies; (iii) the Government had to ensure that there was transparency and genuine access to information regarding the registration of trade union organizations and the collective agreements concluded. The Government should communicate any information in this respect; (iv) workers wishing to exercise their right to freedom of association and to collective bargaining had to be able to do so and, where appropriate, effectively and expeditiously challenge the validity of protection contract unions and the agreements they had negotiated; (v) they urged the Government to apply the existing law and ensure that outsourced workers were not used to interfere with the exercise of the right to freedom of association and the right to collective bargaining; (vi) the proposed legislation also removed basic safeguards concerning dismissals and redundancy. The Government had to protect workers from arbitrary dismissals and retaliation for their trade union activities. The same was true for collective redundancies; and (vii) the Government should explicitly repeal the restrictions on trade union pluralism and the free election of trade union leaders. Finally, they urged the Government to put an end to violence against trade unionists, including those engaging in social and political issues, which was part of their function as trade unionists, by ending the reign of impunity for those crimes. Those responsible, both the material and intellectual authors, had to be arrested and brought to justice. Failure to do so only further invited the use of violence, including murder, by some employers and their agents in industrial disputes. In order to comply with those recommendations, and given the significance of the issues being discussed, they urged the Government to seek technical assistance from the ILO on the draft legislation and to accept a direct contacts mission. This case should be included in a special paragraph of the Committee’s report.

The Employer members thanked all those who had spoken during the discussion, which had been rich in information and diverse in opinions, thereby demonstrating the option of putting forward open and frank positions on the various aspects of the case. The additional responses provided by the Government had reaffirmed many of the points contained in its initial statement, and had also clarified points made previously by the Employer members. The positions of various Worker representatives reflected a number of viewpoints and approaches which, as the Employers had noted previously, might go beyond the scope of the Convention. The Committee of Experts had referred in its observation to Case No. 2694 of the Committee on Freedom of Association. In its June 2017 report, the Committee on Freedom of Association had drawn a distinction between general issues and specific allegations. The general issues covered all the legislative aspects that were before the Committee of Experts and the Conference Committee, and which had indeed been discussed today. However, the specific aspects that might be connected with Convention No. 98 were being analysed by the Committee on Freedom of Association in a more detailed evaluation of many of the aspects that had been referred to today by the representatives of the different sides. Hence, neither the Conference Committee nor the Committee of Experts needed to address aspects relating to the principles of collective bargaining. For that reason, the subject of collective bargaining systems was not part of the discussion and should be completely excluded from the considerations and conclusions of the Conference Committee. The Government had referred to a labour inspection protocol on free collective bargaining, which enabled labour inspectors to perform many different duties and provided protection for many workers in Mexico. Moreover, the Government had referred to the trade union consultation system, indicating that it had received over 1 million visits and contained detailed information on over 3,400 union associations, which responded to the Committee’s concerns regarding the registration and information system. The Government has also indicated that a decentralized public body was being established as part of the constitutional reform, which would include administrative, organizational, technological and logistical tools for its implementation. In addition, more than 91 meetings had been held with representatives of workers, employers, academics and associations of lawyers, as well as the public hearings decided upon by the Senate to give effect to the new legislation and the four legislative initiatives or proposals. A whole process of change was taking place through extensive social dialogue, as promoted by the ILO. The establishment of independent labour tribunals, with a specific budget for their operation, was all part of a process involving the implementation of clear and specific measures. The Government had responded repeatedly to the various concerns expressed by both the Committee of Experts and the Conference Committee. With regard to civil liberties and trade union rights, the Government had provided information from a number of independent bodies on various acts of violence that were unrelated to freedom of association, which meant that there was no need to provide further details. Consequently, with regard to the request by the Committee of Experts for the Government to provide comments on those acts of violence, it should be considered that the information had already been provided, and that no further information was required. Concerning the constitutional reform and the recommendation for the Government to take further measures and to hold tripartite consultations on the reform, the Employer members considered that it would be appropriate for the Government to include that subject in the report to be submitted under article 22 of the ILO Constitution, but not in an additional report or in one to be provided earlier than usual. The subject of representation and protection agreements or contracts would be analysed by the Committee on Freedom of Association, and the Government should refer to that Committee for further detail. The Employer members therefore considered that the conclusion concerning the possibility of the Government adopting measures for that purpose in conjunction with the social partners was a matter to be addressed by the Committee on Freedom of Association, not the Conference Committee. With reference to the publication of trade union registrations, the information system already existed and provided comprehensive information. The conclusion calling on the Government to continue providing information on compliance with its obligation to publish information on trade union registrations and constitutions was also not therefore indispensable. Finally, the Employer members considered that many issues relating to the legislative reform, in light of the Government’s explanations and the case law, were no longer applicable and that the request by the Committee of Experts for the Government to take steps to amend the restrictive provisions of the Federal Act on State Employees was no longer required. Nor was it appropriate to call for measures to be taken to amend section 372 of the Federal Labour Act, which prohibited foreign nationals from being members of trade union executive bodies, in order to ensure that right was set out explicitly. The conclusions should therefore be aimed at ensuring the provision of additional information as part of the regular reporting in accordance with the general procedures relating to the supervision of any Convention. The Employer members considered that the case could be closed.

Conclusions

The Committee took note of the written and oral information made by the Government representative and the discussion that followed.

The Committee also noted the prior discussion of this case in the Committee, most recently in 2016.

Taking into account the Government’s submissions and the discussion that followed, the Committee encouraged the Government to:

- continue to pursue further legislative action envisaged in the context of the Constitutional reform in continued consultation with the social partners at national level;

- ensure, in consultation with the social partners, that the secondary legislation required to enact the reforms to the Constitution and federal labour law are in conformity with the Convention;

- continue to fulfil its existing legal obligation to publish the registration and statutes of trade unions, as well as existing collective agreements; and

- ensure that trade unions are able to exercise their right to freedom of association in law and practice.

The Committee invited the Government to report in detail on the measures taken to implement these recommendations to the next meeting of the Committee of Experts in November 2018.

The Government representative expressed appreciation to the Committee for the constructive and open dialogue that had taken place. She had listened particularly carefully to the comments made and issues raised during the debate and to the conclusions presented, which would be duly evaluated and taken into account by the authorities. She also reaffirmed the Government’s commitment to fundamental principles and rights at work and to the promotion and attainment of decent work. Social dialogue was the best tool to identify actions that would ensure the continued application of fundamental principles at work, especially the principles laid down in the Convention. Mexico reiterated its commitment to social dialogue and to the ILO supervisory mechanisms which helped to strengthen that dialogue. To that end, it would respond to the requests for information promptly and appropriately.