Caso individual (CAS) - Discusión: 2015, Publicación: 104ª reunión CIT (2015)

Convenio sobre la libertad sindical y la protección del derecho de sindicación, 1948 (núm. 87) - México (Ratificación : 1950)



A Government representative said that freedom of association was at the core of the ILO’s values and was the essence of collective bargaining, leading to fair and equitable labour relations. He reiterated his Government’s absolute commitment to freedom of association. He added that the legislative reform process included representative workers’ organizations without restriction and that it was important for workers and employers to participate in the country’s economic and social growth. With respect to the requests of the Committee of Experts, he indicated, inter alia, that: (a) with regard to the murder of two campesino (farmer) leaders, a causal link between the events and the exercise of freedom of association could not be drawn because the victims had been coffee producers, not workers, they had not been engaging in trade union activity, and the claims did not relate to an employment relationship. While the gravity of the events should not be underestimated, there had been no violation of the Convention; (b) with regard to the transparency of trade union registration, the legislative reforms provided for the registers to be published electronically. Although the Committee of Experts indicated that there had been no publications, registers had already been published in two cases and other districts were well on the way to doing so, in all cases within the legal time limits; (c) with respect to the legal provisions that were allegedly in violation of the Convention, international treaties took precedence in the legal hierarchy over domestic legislation, and the principle of the most favourable treatment applied to workers, with the provisions of treaties being directly applicable; (d) with regard to the question of whether provisions prejudicial to freedom of association were being applied, as indicated by the Committee of Experts (such as, for example, that workers who resigned from a union would lose their jobs, or that multiple unions could not exist within the same state service, or the prohibition on public service trade unions affiliating with campesino organizations), those provisions had not been applied for more than 50 years and had been superseded by jurisprudence; and (e) with respect to the ban on foreigners serving on trade union executive committees, the administrative and regional authorities did not ask for proof of nationality from representatives. In conclusion, he said that the Government of Mexico was in compliance with the Convention and would continue to show the political will to do so.

The Worker members thanked the Government of Mexico for the information provided which would be analysed, particularly the cases of assassination. In Mexico, protection contracts presented the most serious obstacles to the exercise of freedom of association. A protection contract was a false collective agreement signed between an employer and a union, often established by the employer, and even subject to criminal elements, without the participation of the workers, and even without their knowledge. Its objective was to prevent any independent trade union representation and most afforded employers full discretion with respect to wages, working hours and employment conditions. Once the protection contract had been registered and was in force, it was extremely difficult to form another trade union within the enterprise to negotiate a new legitimate collective accord. When workers attempted to organize freely through a vote (recuento), the employer and the trade union that were signatories to the protection contract often acted in unison to intimidate the workers through verbal threats, sometimes physical violence and summary dismissals. Furthermore, the electoral processes were often manipulated to ensure the defeat of the democratic trade union. This corrupt system, unfortunately, did not appear to be restricted by the Secretariat of Labour and Social Welfare. At the local level, the protection contracts were registered with the full knowledge of the local conciliation and arbitration boards, on which the unions who were signatories to the protection contracts were represented. The Mexican system of conciliation and arbitration boards had been widely criticized for a lack of effectiveness, political partiality and corruption. Although they were nominally tripartite, in practice, these boards were controlled by the executive authorities. While workers benefited, in theory, from direct representation, the procedures for the election of workers’ representatives were unclear. Several experts had proposed replacing the system of conciliation and arbitration boards with a system of labour tribunals, which would come under the judicial rather than the executive authorities. Experts estimated that approximately 90 per cent of all collective agreements in Mexico were protection contracts, and that the number had been rising over recent years. The persistence of these contracts was explained by corruption and the networks which plagued politics, the administration, the judiciary, the economy and trade unions. This phenomenon had been widely documented in the public reports of the North American Agreement on Labour Cooperation, in academic research and recent case studies. In its 370th Report, the Committee on Freedom of Association recommended the Government to avail itself of ILO technical assistance to carry out an evaluation of national law and practice with regard to protection contracts. They referred to an example of a protection contract concluded between the management of an automobile factory and a “yellow” trade union and the resulting obstacles for the establishment of an independent trade union. On 1 December 2012, the Government of Mexico had enacted a significant reform of the Federal Labour Act, which did not include any provision aimed at restraining the widespread use of protection contracts, but centred on introducing more flexible labour relations. Other aspects of the Mexican system restricted freedom of association: the obligation for the trade union election results to be approved by the labour authorities (a procedure known as toma de nota, which had been used to remove leaders from union duties for political reasons); the limitation of trade union representation rights to workers in specific industries (radio de acción) and the fact that trade unions could not change their status to represent workers in other industries; the very small amount of the penalties provided for by law for violations of labour law and trade union rights, since workers often received less than a third of the amount legally due to them further to legal proceedings relating to dismissal based on discrimination (as the reform of the 2012 Labour Act, had limited salary arrears to 12 months in the case of illegal dismissal, even though the procedural deadlines were often much longer which, in addition to the malfunctioning of the conciliation and arbitration boards, had a dissuasive effect on workers); the fact that conciliation and arbitration boards systematically declared strikes illegal, often on technical grounds (even though the courts had revoked such decisions by the boards, it nevertheless entailed costs and considerable delays for workers), the right to strike was also severely restricted by the possibility for the employer to declare the collective agreements null and void on grounds of force majeure.

In conclusion, they denounced the use of physical violence against workers defending their rights, which was a widespread practice in Mexico. Four members of the National Union of Mine and Metal Workers had been murdered since 2006. Nobody seemed to have been charged. Santiago Rafael Cruz, an organizer with the agricultural workers’ organizing committee, had been murdered on 9 April 2007 in Monterrey. The three suspects were still at large. The collective actions of the Los Mineros union had been targeted with systematic attacks by police and armed groups. Violence had also been used against the independent union of electricity and telephone workers and the Authentic Labour Front. Furthermore, non-governmental human rights organizations, which also defended the rights of workers, had been subjected to threats, surveillance and intimidation. They emphasized that attacks on freedom of association in Mexico, a G20 country, were unacceptable, as had been stated repeatedly in international forums. It was time for Mexico to tackle its problems seriously, starting with protection contracts, so as to nurture a dynamic and independent trade union movement in the country that would improve labour relations. Noting that Mexico was currently considering ratifying the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Worker members encouraged it to do so, as it would be a significant step but which would require real political will to give full effect to the provisions of Conventions Nos 87 and 98.

The Employer members referred to the issues raised by the Committee of Experts. With regard to the murders of two campesino leaders, they noted the Government’s statement to the effect that they were not related to freedom of association matters, since the victims had not been workers but coffee producers, they had not been acting as part of a trade union and their claims had not concerned a labour issue. It was not clear where the information had originated. With regard to the registration of trade unions, they welcomed the measures taken by the Government with respect to computerization and adapting technologies to meet the targets it had set as part of reforming the Federal Labour Act. They also referred to paragraph 561 of the Report of the Committee on Freedom of Association in Case No. 2694, in which the Committee had noted with interest the reform of the Federal Labour Act that had come into force on 30 November 2012, eliminating the exclusion by separation clause in collective contracts (which authorized dismissals in cases of resignation of union membership), required the Federal Conciliation and Arbitration Board to make the contents of collective agreements public and eliminated the local conciliation and arbitration boards, making the Federal Conciliation and Arbitration Board alone responsible for the resolution of labour disputes. The Committee on Freedom of Association had also noted that the Government’s reply indicated that the legislative reform also provided for greater transparency and democracy in trade unions, the professionalization of the legal staff of the boards, the adoption of rules to prevent irregular or corrupt practices in their proceedings, measures to expedite and streamline procedures and more serious fines for deliberate delays. The progress made by the Government of Mexico should not therefore be ignored. Moreover, in paragraphs 562 and 563 of the same report, note was taken of the information provided by the Government on the legal provisions and the national jurisprudence regarding the minimum number of workers required to establish a trade union; the entitlement of the majority trade union to collective agreement rights; the rights of minority trade unions; the right of all workers to join or not join, and to create a trade union; and the right to refuse membership. The Committee on Freedom of Association had observed that the provisions described by the Government did not appear to violate the principles of freedom of association and collective bargaining. It had also taken note of the information provided by the Government regarding its social dialogue and tripartite dialogue policy. They concluded by emphasizing the importance of tripartite dialogue in solving problems. With regard to the right of trade unions to organizing their activities and formulate their programmes, the Committee of Experts had requested the Government to amend the legislation that recognized the right to strike of state employees only if there was a general and systematic violation of their rights. They reiterated that the right to strike was not recognized as deriving from the Convention and that only national legislation should be taken into account.

The Worker member of Mexico referred to the request of the Committee of Experts in the context of Case No. 2694 of the Committee on Freedom of Association to apply effectively at the local level the legislation on the publication of the registration of trade unions. In its reports on compliance with the Convention, the Government had indicated that the Federal Labour Act had been amended by a Decree that had taken effect on 1 December 2012. It had, inter alia, reformed, supplemented and repealed various provisions of section 365bis, which provided for compulsory publication of trade union registrations and rules by the Secretariat of Labour and Social Welfare at the federal level and by local tripartite conciliation and arbitration boards in the states and the Federal District. However, two and a half years later, section 365bis was only being fully complied with at the federal level by the Secretariat of Labour and Social Welfare and partially by the local board of the Federal District, which meant that the 31 state boards were not giving effect to it. The widespread lack of transparency in registrations had consequences for the whole working class because it seriously hampered the exercise of freedom of association and was an obstacle to genuine collective bargaining. The harmful effects of the lack of transparency in registrations had also led to the registration and proliferation of illegitimate trade unions that had signed false collective agreements concluded without consulting the workers (commonly referred to as “employer-protector agreements”), which hindered the legitimate exercise by workers of the right to strike to obtain genuine collective agreements, since the labour legislation provided that if a collective agreement had been concluded and registered, strikes were not permitted in support of a demand to conclude a different collective agreement.

The Employer member of Mexico noted the progress made by the Government of Mexico. The murders of two campesino leaders, while deplorable, had no relation to labour matters. While the legal provisions on trade union pluralism had not yet been amended, they had been declared unconstitutional, meaning it was now possible for more than one trade union organization to exist in the same state entity. The labour reform had resolved many pending issues. The Committee of Experts had referred to laws and regulations that did not exist and had made erroneous references. Regarding the observation made by the Committee of Experts that the forced mobilization of workers who were on strike was only justified if it was to ensure essential services in the strict sense of the term, he emphasized that this situation had not arisen. Regarding the right to strike, the information referred to by the Committee of Experts was incorrect, and in any case the draft conclusions should not refer to this issue. Regarding the registration of trade unions, the Committee of Experts had welcomed the adoption of a number of provisions aimed at making trade unions more transparent and democratic, including the new section 365bis of the Federal Labour Act, which made it compulsory for the Department of Labour and Social Provision and the conciliation and arbitration boards to publish trade union registrations and by-laws. It needed to be borne in mind that the legislative reform had taken effect at the end of 2012, and that the Government would enforce the new legal provisions in the near future. He emphasized that it was not acceptable for the Committee of Experts to refer to Case No. 2694 of the Committee on Freedom of Association, as that could cause confusion between the two bodies, which dealt with different matters. He requested the Committee of Experts to work with the information provided by the Government. The progress made by the Government should be taken into account.

The Government member of Cuba, speaking on behalf of the Group of Latin American and Caribbean countries (GRULAC), noted the information provided by the Government concerning the murders of two campesino leaders during a public demonstration. She noted the Government’s statement that the complaint presented in September 2014 concerning those events contained no evidence that would suggest a causal link with the exercise of freedom of association. GRULAC noted with interest the Mexican Government’s will to investigate the case and trusted that it would provide the Committee of Experts with further information in due course. She also noted the progress made by various federal entities in the application of the Federal Labour Act, which required them to publish registers, trade union by-laws and collective agreements with a view to improving the transparent and democratic functioning of trade union organizations while respecting their autonomy. GRULAC acknowledged the significant efforts involved in computerizing and adapting technology to meet the Government’s own targets to reform the Federal Labour Act and encouraged the Government to continue making efforts to extend compliance with section 365bis of the Act to the rest of its federal entities. The Mexican Government had provided information concerning judicial rulings from the Supreme Court of Justice and the interpretation of the Federal Conciliation and Arbitration Tribunal which had found that legal restrictions on the freedom of association of civil servants were not applicable. She noted with interest the Government’s explanations concerning the interpretation of the Federal Conciliation and Arbitration Tribunal, which considered that, even though the legislative authorities had not amended the freedom of association legislation that applied to workers employed by the State, the 2011 Constitutional reform in the area of human rights had made it clear that international treaties, once ratified, were binding. Under Article 133 of the Constitution, acts of Congress deriving from the Constitution and all treaties that were in conformity with it, with the approval of the Senate, constituted the supreme law of the land. In that respect, compliance with the Convention was not conditional on the provisions of the Federal Civil Servants Act, as the Convention took precedence over the latter. Rulings of the Supreme Court of Justice had also recognized the hierarchical position occupied by international treaties ratified by Mexico within its domestic legal framework. Lastly, GRULAC welcomed with interest the Government’s will to continue promoting social dialogue with all of the most representative workers’ and employers’ organizations and reiterated its commitment to the strict application of the Convention and respect for freedom of association. She trusted that the Mexican Government would continue taking steps to give effect to the Convention.

The Worker member of the United States emphasized the volume of exported fruit and vegetables from Mexico to the United States, which had tripled to US$7.6 billion over the last decade. He said that trade and profit under the North American Free Trade Agreement (NAFTA) had benefited employers along the supply chain, but denied labour rights to workers. Mexico had ratified Convention No. 87 and the Rural Workers’ Organisations Convention, 1975 (No. 141), but continued to exclude that workforce from labour rights and protections. Workers, including children, lived in poor conditions and were exposed to toxic chemicals and wages were often illegally withheld. Employers rarely registered workers in social security or made the required contributions to the system. He cited an example of farmworkers in San Quintin who had organized and exercised their right to strike, negotiated improvements in the terms and conditions of their work and demanded an end to union registration that had been secretly held by non-representative organizations. As workers were negotiating with employers and the Government, organizations that held the official union registration tried to impose a wage increase well below what workers were seeking. The officially registered union had played no role whatsoever in negotiating the 4 June agreement which actually represented the interests of workers. The 4 June and 14 May agreements concluded by employers, the Government and workers were an important but tenuous victory that would have to be watched closely, supported by all the signatory parties and built upon. The exercise by workers of their rights under the Convention, including the right to join an organization of their own choosing and to collective action, such as the right to strike, had taken place outside, and despite, Mexico’s predominant labour relations system. That example illustrated that Mexico did not respect freedom of association. However, it also showed that workers could solve that problem by exercising their fundamental rights, including the right to strike, regardless of shortcomings in national law and practice. Until union registrations were made public and non-representative entities were barred from signing protection contracts, Mexico would not be in compliance with the labour rights protections in trade agreements that included Convention No. 87. The Trans-Pacific Partnership which was being negotiated between twelve countries, including the United States and Mexico, was supposed to include strong commitments to core Conventions. Without real reform of law and practice, Mexico would be in violation from the moment such a treaty entered into force.

An observer representing IndustriALL Global Union denounced the protection contracts labour relations system in Mexico. The reports on Case No. 2694 of the Committee on Freedom of Association showed that over 90 per cent of all workplaces were still controlled by the official protection unions. Despite the repeated recommendations from the Committee on Freedom of Association and the Governing Body over the past five years, and the Government’s public and written promises, there had been no progress for Mexican workers. The protection contract system and the conciliation and arbitration boards prevented workers from establishing unions. Despite the 2012 reform to the Federal Labour Act, there was still no access to information concerning collective bargaining agreements, transparency and labour inspection. Workers in the leather and shoe industry, rural areas, mines, the oil and gas industry and export processing zones who had refused to recognize official protection unions had suffered physical harm, been dismissed, had criminal charges brought against them and been subject to other threats. The Government had been promising to ratify Convention No. 98 for the past three years, and had been promising that the 2012 reform of the Federal Labour Act would be submitted to the ILO for technical revision, but it continued the persistent violations of Convention No. 87 through the protection contract system.

The Government member of the United States said that, in November 2012, the Government of Mexico had taken steps to modify key provisions of the Federal Labour Act. She welcomed the inclusion of provisions designed to strengthen freedom of association and collective bargaining. The reforms, however, had not been sufficient to ensure full conformity with international standards and Mexico lacked appropriate structures for their effective enforcement. The persistence of false trade unions, or “protection unions”, remained a major challenge and constituted a serious limitation of the right to freedom of association, particularly as collective agreements were concluded with these protection unions without the knowledge and consent of workers, often even before enterprises had opened. Section 365bis of the Federal Labour Act provided for compulsory publication of trade union registration and rules by the local conciliation and arbitration board. The National Union of Workers (UNT) had reported that this legal obligation was not currently effectively fulfilled by any of the local boards in practice in Mexico’s 31 states. This failure facilitated the persistence of protection unions. She indicated that the 2012 reforms had failed to address key deficiencies in the Federal Labour Act that allowed the continued existence of protection unions, including the absence of any provision that would require the demonstration that an employer was operational and that its workers supported the initial collective bargaining agreement at issue before that agreement could be deposited. She was also concerned by the enabling role of conciliation and arbitration boards in the establishment and perpetuation of protection unions, particularly through their authority to register collective agreements and to administer the recuento process through which a union attempted to secure collective bargaining rights for its workplace. The structure of these local boards did not provide for adequately inclusive worker representation and often perpetuated a bias against independent unions. It was time for the Government of Mexico to transfer these functions to the judicial branch or some other independent entity to ensure honest representation of workers and the full and fair administration of labour law and adjudication of disputes. She called on the Government of Mexico to undertake these critical legal and administrative reforms to adequately address the continued presence of protection unions and the failings of the boards in order to ensure workers the right to freedom of association in law and practice as soon as possible.

The Worker member of Finland indicated that national legislation should never be used as an excuse to undermine core ILO labour standards. Companies should respect the same core labour standards wherever they operated. All workers had the fundamental right to join the union of their own choosing without any interference or harassment, and had the right to negotiate collectively. She added that, unfortunately, the examples she was raising were from a Finnish multinational company operating in Mexico. It was currently an employer of 7,000 workers and she emphasized that the workers employed by the company had not learned of the existence of the protection contract until they had sought to organize an independent union at their factory. The management had denied their request and had referred to the existing protection contract. The independent union, Los Mineros, had requested the labour authorities for an election to allow workers to choose their union. The authorities had delayed the election for a year, giving the company and the protection union time to pressure workers, including with threats to close the plant. The independent union had narrowly lost the election. Immediately following the election, the company had dismissed more than 100 workers, including the entire executive committee of Los Mineros. The dismissed workers also included all the union observers in the election. Workers were had been called individually and told to sign a “voluntary” resignation letter. Officials of the Federal Labour Board had been present and had encouraged the workers to sign. Moreover, ten workers had not signed the resignation letters and had filed for reinstatement. After more than two years, the Federal Conciliation and Arbitration Board had ordered the reinstatement of four workers in a decision of 8 March 2015. The Board had ordered the payment of back pay from the date of their illegal dismissal. The other six workers were still awaiting a decision on their case. She believed that the company had not yet reinstated the four workers. Instead, it had offered to pay them off, which the workers had not accepted. She urged the Government to fulfil its obligations and ensure that all companies operating in Mexico, including Finnish companies, complied with freedom of association in conformity with the Convention.

An observer representing the Confederation of University Workers in the Americas (CONTUA), also speaking on behalf of Public Services International (PSI), expressed support for the claims made by the UNT. The underlying issue was the lack of democratic institutions and the manipulation of legal and technical instruments to undermine the standards laid down in Mexican labour legislation, to the detriment of workers and in violation of the right to freedom of association. He denounced State complicity with powerful and unscrupulous entrepreneurs and connivance with false unionists. Protection contracts were a collective bargaining farce, a widespread practice to prevent the development of autonomous unions which upheld democratic values. Such contracts were still in force, despite having been denounced at the national and international levels for so many years, and they were even still used in the public sector. He called for an end to this shameful practice. He observed that the case under discussion showed that anti-union pressure had intensified. The failure of the Government to meet its obligation to make trade union registrations and by-laws public was another means of protecting false unions and restricting and failing to protect democratic trade unions, whose registration was either refused or delayed excessively without any grounds whatsoever. He agreed with the Committee of Experts, which had indicated that there was a conflict between Mexican labour legislation and the Convention, namely the prohibition on two or more unions coexisting in the same state agency; the creation of mixed organizations (combining trade unions and other sectors of society); and the recognition of trade union federations at state level. He conceded that many of those contradictions had been resolved through the courts, with the provisions in question being declared unconstitutional after long legal proceedings. However, in addition to judicial rulings, it was vital to repeal once and for all the provisions that were in violation of the Convention. He emphasized the serious legal restrictions in Mexican legislation limiting the right to strike of state employees, which were inconsistent with international standards and with the historical stance taken by the ILO supervisory bodies, in addition to being in violation of the Convention, which clearly protected the right to strike as a human right at work. In conclusion, he noted that collective labour relations in Mexico were in need of continuous analysis by the ILO, sustained support for those who promoted and fought for democracy and the momentum of political and social change.

The Worker member of Colombia agreed with the International Trade Union Federation (ITUC) and the Trade Union Confederation of the Americas (CSA-TUCA) that there was reason to fear that the concept of employer protection collective contracts might be exported to other countries, as had happened in Colombia, whose union contracts operated as employer protection contracts. He recalled that employer protection collective contracts had been defined as contracts that employers concluded with trade unions, or rather with a person with a trade union registration, who guaranteed that the employer would be able to operate without any union opposition or any demands from the workers, in exchange for paying the “trade union” offering the service. In reality, the whole process involved a false union and a false collective agreement. Certain studies suggested that around 90 per cent of registered collective contracts in Mexico were in fact employer protection collective contracts. That was a result of three factors: the existence of a large number of enterprises and false trade unions that were willing to violate the law; the existence of legal provisions under which collective protection contracts were possible; and the inaction or complicity of State institutions. Although collective labour contracts had to be deposited with conciliation and arbitration boards, the union did not have to prove the membership of the workers in the enterprise with which they were concluded. Furthermore, almost all collective contracts contained an “exclusion clause” that prohibited employers from recruiting workers who were not members of the union (“exclusion from recruitment”) and a clause obliging them to dismiss workers who resigned or were expelled from the union (“exclusion by separation”). He considered that: it was necessary to review the power of the authorities to refuse the registration of a trade union or to recognize its representatives; that when depositing a collective agreement, the existence of the enterprise concerned and of its workers, and their representatives, should be required; and that “exclusion from recruitment” and “exclusion by separation” clauses should be prohibited. It was also essential to adopt measures to guarantee in practice the enforcement of the new legislative provisions requiring that the registration information and by-laws of unions be made public and accessible, as well as the measures on the transparency and democratic functioning of trade unions. In conclusion, he urged the Committee to reiterate appeal made by the Committee of Experts for the amendment of Mexican legislation so that the right to strike of workers in the service of the State, including workers in the banking sector, was fully recognized, as that right was inherent to Convention No. 87.

The Government representative said that there were a number of issues that warranted analysis and clarification. He reiterated the Government’s commitment to freedom of association and the free exercise of the right to organize. He expressed particular concern at the fact that the matters raised predated the labour reform, the first of the major structural reforms undertaken in the country, which had entailed significant changes in the manner in which those issues were addressed. Referring to the claims that 90 per cent of collective agreements were protection contracts, he observed that that figure originated from a survey conducted in 2004, and that, regardless of the criteria used in that analysis, it was important to indicate that there had been substantial developments and changes in enterprises in Mexico. He emphasized that virtually 99 per cent of enterprises in the country were micro, small and medium-sized enterprises. Statistical information should be treated with particular care. With regard to the toma de nota provisions on the recognition of unions, under section 693 of the Federal Labour Act it was possible for legal personality to be granted to trade unions on the basis of other documents. He said that the acknowledgement of the legal personality to a trade union did not affect its operation. He emphasized that toma de nota certificates were issued within an average of five working days, and sometimes even three. With regard to the coverage of unions, any trade union was free to include any worker as its member; the point was to prevent the creation of false unions. With regard to the references made to Cases Nos 2694 and 2478 of the Committee on Freedom of Association, he considered that the Conference Committee was not the appropriate forum to which to transfer discussions from the Committee on Freedom of Association, as confusion would ensue. The delay in the online publication of union by-laws and registrations had been presented as showing lack of transparency in union matters. He emphasized that the obligation to ensure transparency had existed from the time when the law had come into force; and that at present action was being taken to facilitate access to information. With regard to the claim that there had been no communication with the UNT to address those issues, he recalled that in July 2013 a specific collaboration agreement had been signed with the UNT establishing that one of the issues to be dealt with would precisely be respect for collective bargaining and freedom of association. He invited the UNT to give effect to agreement and to review its content, and called for the information used to be up to date. He considered it a matter of concern that respect and protection for workers’ rights were being confused with an issue that related to market competition between enterprises. He added that the “exclusion clause” had been removed from the Federal Labour Act during the reform. The reform also introduced penalties for staff of conciliation and arbitration boards who interfered unduly in or delayed proceedings; and that the penalties could include detention. He refuted the assertion concerning the availability of information, referring to what had been said previously concerning two districts (San Luis Potosí and the Federal District). He added that, in view of the complexity of the transformation needed in the conciliation and arbitration boards, the labour reform had allowed three years for a series of improvements. He reiterated that the Government of Mexico would continue working intensively and listening to all voices in seeking the best way to safeguard the right to freedom of association and legitimate representation for workers. Nevertheless, he explained that, in so doing, particular care would need to be taken to avoid simulations or actions which, without directly representing the legitimate interests of workers, sought to obtain representative positions to which they were not entitled. He referred to situations that had been remedied by judicial rulings. The Government would be receptive to requests for information made by the present Committee.

The Employer members said that they had listened carefully to the various issues raised. They noted that opinions varied on matters that probably fell outside the scope of the Convention. They recalled that it was important for the Committee to restrict itself to examining Convention No. 87, as Mexico had not ratified Convention No. 98. They added the many references had been made to matters that were directly related to Convention No. 98, which they would not address in detail. They recalled certain information presented by the Government representative regarding the need for trade union registration to be transparent, the significant reforms that had been implemented in the Federal District and San Luis de Potosí, and the setting of a deadline of three years, which they considered reasonable. They noted that the principle of the most favourable treatment was applied. Trade unions could coexist and no one had been dismissed for belonging to a trade union. And there were campesino organizations that were affiliated with other organizations. Although the Federal Labour Act still contained a prohibition on foreigners serving on executive committees, this requirement did not apply in practice for registration. They emphasized that the information available came largely from the cases of the Committee on Freedom of Association. Four meetings had recently been held with different types of organizations, two of which had been attended by the President of Mexico. At one of these, in August 2013, a meeting had been held with the CSA-TUCA, the IndustriALL Global Union and the United Steelworkers, during which many issues relating to the legislative reforms had been discussed. In April 2014, the President of Mexico had also held a meeting with the UNT, the organization that had submitted the complaint to the Committee on Freedom of Association. In addition, the Secretary for Labour and Social Welfare had held several meetings, including with the UNT, the Revolutionary Confederation of Workers and Campesino Farmers, and the Regional Confederation of Workers of Mexico. Progress was being made in many areas that were addressed. Extensive social dialogue was being undertaken, not only with Mexican workers’ organizations, but also with international organizations. They emphasized that it was important that existing conflicts were being resolved and that social dialogue, inspection mechanisms and the justice system were functioning. They also recalled that it had been reported that many legislative provisions were not only inapplicable, but also unconstitutional. They noted that ILO technical assistance could be associated with a process of legislative development. To that end, the Government itself had announced the possibility of carrying out a technical revision of Mexican legislation. They invited the Government to avail itself of ILO technical assistance, where appropriate.

The Worker members said that it was positive that the Government recognized the problems it faced regarding freedom of association, including those related to “protection contracts” that were flagrant violations of the principle of freedom of association. That type of agreement denied workers the right to be freely represented by the trade union of their choice and to bargain collectively. Workers found themselves to be members of protection unions and covered by collective agreements without even being aware of it. However, protection contracts were not negotiated by democratically elected workers’ representatives and therefore did not reflect their priorities. The situation was not showing any sign of improvement since 90 per cent of existing collective agreements were of the protection type. For many years and despite the recommendations of the ILO supervisory bodies, the Ministry of Labour had still not taken appropriate steps to remedy the situation. In December 2012, an important reform had been undertaken of the Federal Labour Act and it was regrettable that the opportunity to resolve the issue had not been taken. The conciliation and arbitration boards also caused serious problems regarding the exercise of freedom of association, as they were not independent and were subject to political influence and corruption. For these reasons, the Worker members urged the Government to comply with its legal obligations without delay by publishing the list of registered local trade unions in the 31 states, and not just in the Federal District, and by identifying, in consultation with the social partners and in accordance with the recommendations of the Committee on Freedom of Association, the legislative reforms needed to be made to the 2012 Federal Labour Act to bring it into line with the Convention. The reforms should in particular focus on the recommendations related to, inter alia, the prevention of the registration of trade unions that did not have electoral proof of the support of the majority of the workers that they claimed to represent, and the annulment of protection agreements concluded by trade unionists which had not been elected to represent the workers through a democratic process. It was also important to address the issue of potential conflicts of interest in the conciliation and arbitration boards. The Worker members invited the Government to ratify Convention No. 98. In conclusion, they recommended the ILO provide the Government with technical assistance, and wondered whether a direct contacts mission should be proposed in the present case. The worker members noted with interest that the Employer members of Mexico referred to the comments of the Committee of Experts on the modalities for the exercise of the right to strike.

Conclusions

The Committee took note of the oral statements made by the Under-Secretary for Labour and Social Provision and the discussion that followed.

The Committee took note of the fact that the issues raised by the Committee of Experts related, among other things, to: the murders of two campesino (peasant farmer) leaders; failure to publish trade union registrations and by-laws at local level (a practice connected with protection unions and protection contracts) despite a legal obligation to that effect; legal provisions declared unconstitutional that ran counter to trade union pluralism in federal state agencies, the right of civil servants to join trade unions freely and the right of civil servants’ organizations to affiliate with other organizations; and the ban on foreigners serving on trade union executive committees.

The Committee took note of the Government representative’s statements to the effect that the two campesino leaders murdered had not been dependent workers but coffee producers, had not belonged to any union, and had submitted claims that concerned the havoc wrought by a hurricane, such that the events had no relation to the Convention. With regard to the alleged failure to publish trade union registrations and by-laws at local level, it noted that as a result of the reform of the Federal Labour Act in 2012, any worker was now entitled to view these registrations and there was also a legal obligation to publish them electronically, although the reform allowed three years for this to be finalized (in fact, two local conciliation and arbitration boards, for the Federal District and San Luis de Potosí, already had electronic methods in place; the rest were in the process of digitization). The provisions of the Federal Act on State Employees mentioned by the Committee of Experts had been superseded by jurisprudence of the Supreme Court and by usage and custom, such that in many departments there were several registered trade unions, workers were not dismissed when they moved from one union to another, and public service trade unions were in fact affiliated to other organizations (there were four federations). The administrative authorities did not check whether executive committee members were foreign or not, and the 2012 reform prohibited discrimination based on national origin in the exercise of collective rights. The complaints and data referred to by the trade union sector concerning protection contracts were based on studies from 2004 and did not take account of recent jurisprudence or the 2012 reform that had prohibited exclusion clauses in collective contracts that restricted access to employment to members of trade unions; furthermore, the 2012 reform imposed sanctions – and even penal sanctions – on conciliation and arbitration boards whose interference was considered excessive. The Government representative had offered to provide updated information and hoped to receive feedback from the ILO. He recalled the dialogue that had taken place with national and international trade unions, and reiterated that his Government was open to engage in dialogue and that it was committed to freedom of association and other fundamental rights at work. He considered that the Committee should confine itself to the case at hand and, so as to avoid confusion, not become involved in issues that had been dealt with by the Committee on Freedom of Association.

The Committee noted with satisfaction the judgment of the Supreme Court of Justice declaring inapplicable the standards which had impeded trade union pluralism in the institutions of the State and banned re-election in trade unions.

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

• fulfil without delay its obligation to publish the registration and by-laws of trade unions in the local boards in the 31 states in the country, not just in the Federal District and San Luis de Potosí, in a period of three years as established in the Federal Labour Law;
• identify, in consultation with the social partners, additional legislative reforms to the 2012 Labour Law necessary to comply with Convention No. 87. This should include reforms that would prevent the registration of trade unions that cannot demonstrate the support of the majority of the workers they intend to represent, by means of a democratic election process – so-called protection unions; and
• provide a report on progress made to comply with these recommendations by the next session of the Committee of Experts.

The ILO should offer, and the Government of Mexico should accept, technical assistance to address the issues referred to in these recommendations.

The Government representative commended the work of the Committee and noted with interest its conclusions. He expressed the Government’s commitment to provide all the information requested and was convinced that would attest to the progress made in labour matters in Mexico. The results had been achieved through social dialogue and the commitment to decent labour in conformity with the ILO’s mandate.