Report in which the committee requests to be kept informed of development - REPORT_NO368, June 2013

CASE_NUMBER 2919 (Mexico) - COMPLAINT_DATE: 19-DEZ-11 - Closed

Allegations: anti-trade union practices and interference by Atento Servicios SA de CV, particularly in connection with two ballots to determine the most representative union

1. 611. The complaint is contained in a communication from the Union of Telephone Operators of the Mexican Republic (STRM) dated 16 December 2011.
2. 612. The Government sent its observations in a communication dated 1 March 2013.
3. 613. Mexico has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), but has not ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 614. In its communication of 16 December 2011, the STRM explains that it is a national industrial union representing the telecommunications industry, which has a branch (branch 187) in Atento Servicios SA de CV (a company specializing in providing call centre services between companies and their customers through “contact centres”, or multichannel platforms). It was formed in 2008 and filed a request for legal recognition with the public authorities in June 2009, with the signature of 24 workers, and obtained legal recognition in August 2009. According to the STRM, following this, the company dismissed workers who were members of the STRM (mention was made of the names of six workers in July 2009 and another six in October 2009) and reference was made to 50 unnamed dismissals in the Pachuca and Toluca centres which, according to the allegations, had begun to organize. The STRM also notes that significant restructuring took place during this period, with mass dismissals.
2. 615. The STRM states that the trade union with bargaining rights under the collective agreement since 2001 is the Progressive Union of Communication and Transport Workers of the Mexican Republic – SPTCTRM); Atento Servicios SA de CV (the company) made workers sign a membership card upon recruitment and the workers were unaware of the existence of the trade union and of the collective agreement; in a ballot in May 2009, which this union conducted and won, it received seven votes. According to the STRM, company management gave as a reason for failing to reinstate the dismissed members that the SPTCTRM union decided to expel the workers because of their membership of the other trade union, applying the “exclusion clause” contained in the collective agreement.
3. 616. Furthermore, the STRM alleges that on 15 December 2009 it submitted a request for bargaining rights under the company’s collective agreement (through a ballot by the Federal District Local Conciliation and Arbitration Board (JLCADF)); a ballot that, after various barriers and obstacles, took place in an atmosphere of interference, uncertainty and intimidation by a group of 60 company workers and staff, with police support; various irregularities occurred such as altering the worker voting list, so that some persons voted even though they were not entitled to do so. At the end of the day, the SPTCTRM union received 1,230 votes and the complainant union (STRM) 375 votes because of the company’s favouritism for the SPTCTRM, the irregularities committed and the authority’s bias. In January 2011, the STRM appealed to the judicial authority against the decision, claiming victory for the STRM and calling for a revote, which was granted on 8 August 2011 and ordered to take place on 31 October 2011.
4. 617. Days before the election, the company and the SPTCTRM took a series of steps to swing the vote in its favour through the following actions: the dismissal of workers who met the length-of-service requirement for entitlement to vote; the selection by trusted staff of the workers who would come forward to vote, mostly those who would vote for the SPTCTRM; vote buying, with three days’ extra salary offered to workers who would vote for the SPTCTRM; and rumours and threats about the replacement of Atento Servicios SA de CV staff by STRM people.
5. 618. On 31 October 2011, the company and the SPTCTRM carried out an extreme surveillance and transport operation at workplace entrances. The movement of the personnel close to the employer to the JLCADF began at 10 a.m. and of workers at 12 p.m. The transfer was in company buses and vans, the company having hired bouncers, who were placed at workplace entrances to prevent any STRM workers from approaching. The same day, at approximately 3 p.m., the JLCADF was surrounded by bouncers hired by the company and the SPTCTRM, who kept watch on the unionized workers and personnel of confidence to ensure they entered to vote for the protection union. When around 1,000 persons had congregated inside the JLCADF, company workers who supported the STRM were prevented from entering. When the workers who supported the STRM tried to enter, the company and the SPTCTRM forcefully prevented the workers from entering by blocking the entrance. In the end, the JLCADF decided that there was no guarantee that the ballot could take place, and thus decided to suspend the process.
6. 619. The STRM adds that, on 7 November 2011, the JLCADF notified the STRM of the rescheduling of the ballot suspended on 31 October 2011, informing it that the new date for the revote would be 9 November 2011, at 4 p.m. in the JLCADF. The notification set out the same criteria as in the previous notification, the only difference being that the right of the STRM lawyers to speak during the objections stage was removed. On 8 November 2011, the company and the SPTCTRM began to select staff to take to the JLCADF to vote in the JLCADF for the protection union. The lists that they drew up mostly contained personnel of confidence (trainers, supervisors and coordinators) who could not legally participate, excluding the workers who went to vote on 30 October 2011. Action taken by the company on 8 and 9 November 2011 was as follows:
   • – workers who met the length-of-service requirement for entitlement to vote were not informed about the vote on 9 November and in some workplaces they were informed that the vote was on a different day;
   • – voting lists were drawn up, mostly including only personnel of confidence;
   • – there was a ban on the selection of workers for the vote who supported the STRM;
   • – the order was given that workers could only vote on 9 November 2011 if they handed over copies of their voting credentials so that the SPTCTRM could validate their vote.
7. 620. According to the STRM, on 9 November 2011, the company transported staff in private cars and vans to the JLCADF from 9 a.m. onwards. In the end, over 800 persons congregated inside the Federal District Local Conciliation and Arbitration Board, which was cordoned off by a large group of grenadiers to prevent any STRM members from approaching the Federal District Local Conciliation and Arbitration Board, stopping the workers from going in just to vote, arguing that they were not on the list that the company provided to the authority, meaning that many workers were unable to vote. The election result was: 526 votes for the SPTCTRM; 47 votes for the STRM; 1 vote for the Sindicato 21 de Enero; and 4 spoiled ballots, thus confirming the intervention of both Atento Servicios SA de CV and the SPTCTRM, which for the most part sent personnel of confidence to vote.

B. The Government’s reply

1. 621. In its communication of 1 March 2013, the Government states that on 16 December 2011 the STRM presented a complaint to the Committee on Freedom of Association, which was forwarded to the Government of Mexico on 9 February 2012. The complainant union alleges violations of the principles contained in the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). It accuses the Mexican State of acts of omission by allowing the direct interference of Atento Servicios SA de CV (the company) and of the SPTCTRM, through the application of the exclusion clause, mass dismissals, workplace bullying, violence and intimidation against workers who were members of branch 187 of the STRM. It also accuses it of obstructing the registration of STRM branch 187, denial of bargaining rights under the collective agreement and allowing the direct intervention of the company and the SPTCTRM in union ballots.
2. 622. The Government states that, in order to have a more comprehensive and accurate view of the facts given by the complainant union, the Government held relevant consultations with the JLCADF, the SPTCTRM and the company, as the parties involved in this case.
3. 623. With regard to the allegations concerning the constitution of Atento Servicios SA de CV workers in branch 187 of the STRM, the Government considers that the arguments put forward by the complainant union are subjective and lacking in evidential value, since it provides no evidence to verify that these actions have taken place since 2007. Moreover, it provides no names of the workers dismissed or subjected to anti-trade union violence, nor to show whether they took legal action before the relevant labour tribunals to report the infringement of their rights through lawsuits or complaints. In this connection, the national labour law framework grants the right to any worker to appear before the relevant authorities to seek to defend their rights. For this purpose, the Government has the Federal Labour Ombudsman (PROFEDET), whose role is to advise and represent all workers in court cases free of charge and to put forward solutions to reconcile the parties, both individually and collectively, to find a balance between the factors of production and respect for workers’ rights. It was therefore vital for all workers to report any act that affects their labour rights, so that, once identified by the labour authority, any such conduct can be penalized under the Federal Labour Act.
4. 624. With regard to the allegation of the complainant union also stating that, at the end of 2008, the company introduced its workers to the SPTCTRM, with which it had concluded a collective bargaining agreement in 2001, depositing it with the JLCADF, and that until that date the workers were unaware of its existence and contents; that it was reviewed every two years; that in each review wage increases were generated; and that they had never been informed of agreement negotiations, or of their union representatives. With regard to the allegation that, in 2009, the company began a process of mass forced membership of the SPTCTRM, which prevented workers from choosing their leaders and participating in collective bargaining, the Government states that, even though the complainant union failed to provide further evidence, it is important to note that the Government has provided transparency in the information on trade union organizations handled by the authorities to make freedom of association more open. This was ensured through the publication and updating of public documents such as union registers, collective bargaining agreements and internal labour regulations deposited with the relevant authorities and the working conditions regulated by them, making them available to workers so that they are fully aware of their rights and obligations, their representatives and the union to which they belong, which is information that has also been made available to the workers of Atento Servicios SA de CV.
5. 625. In addition to the above, initiatives promoting transparency were reinforced on 30 November 2012 with the adoption of amendments to articles 364bis and 365bis of the Federal Labour Act, which are set out as follows:
   • Article 364 bis. In union registration the principles of legality, transparency, certainty, freedom-of-charge, immediacy, impartiality, and respect for union freedom, autonomy, equity and democracy must be observed.
   • Article 365 bis. The authorities referred to in the article above shall make public, for consultation by any person, duly updated information from union registers. They shall also issue copies of the documents held in the registration files if requested, in accordance with article 8 of the Constitution and the provisions of the Federal Act on Transparency and Access to Government Public Information and the laws regulating access to government and federal authority information, where appropriate.
   • The full text of the public versions of union by-laws shall be available on the websites of the Ministry of Labour and Social Security and the Local Conciliation and Arbitration Boards, where appropriate.
   • Union registers shall contain at least the following information:
     • I. Address;
     • II. Registration number;
     • III. Union name;
     • IV. Names of Executive Committee members:
     • V. Validity period of the Executive Committee;
     • VI. Number of members; and
     • VII. Trade union federation to which they belong, where appropriate.
   • The indicators should be updated every three months.
6. 626. With regard to the alleged obstruction by the Mexican State, the company and the SPTCTRM of free association by the workers of STRM branch 187, the Government notes that in its allegation the complainant union states that in February 2009 the company conducted a union ballot in JLCADF facilities to legitimize the SPTCTRM; that in that process the latter and the National Union of Workers and Employees in General Trade and Service Providers, Storage, Similar and Allied Services of the Mexican Republic) were present and that the results of the vote were in favour of the SPTCTRM. In this regard, the Government emphasizes that in its comments the complainant union produces no evidence to identify any kind of obstruction to freedom of association, since the ballot was carried out as a necessary procedure to determine bargaining rights under the collective agreement and union representation, guaranteeing neutrality and impartiality in the JLCADF facilities.
7. 627. The Government notes that the complainant union also states that, in 2009, a workers’ coalition decided to join the STRM, forming branch 187 to defend their interests, and states that, on 9 June of that year, the branch filed a request for legal recognition with the Ministry of Labour and Social Security, which was granted on 27 August 2009. In this regard, the Government emphasizes that the aforementioned shows that the complainant union sought and obtained recognition of branch 187, without any obstruction and within a period not exceeding that provided for under article 366 of the Federal Labour Act, through the Directorate General for Registration of Associations. It is therefore contradictory and in no circumstances can it be interpreted that the freedom of association of the workers of the aforementioned branch has been obstructed by the Mexican State, Atento Servicios SA de CV and the SPTCTRM.
8. 628. With regard to the allegation that the company began a process of unjustified mass dismissal of workers who joined the STRM branch 187, the Government indicates that it considers that the facts put forward by the complainant union on this point are subjective and lacking in evidential value, since they fail to provide any proof. The trade union organization should therefore not only cite the facts, but also provide all evidence showing the legal action taken by the workers dismissed from their jobs, whether the dismissals were reported and make clear the unjustified reasons for the dismissals, so that the labour authority can take necessary action. It notes that national labour legislation makes provision for the defence of workers’ labour rights.
9. 629. With regard to the allegation that the company denied reinstatement to the workers who were members of STRM branch 187 by applying the exclusion clause, the Government notes that the argument put forward by the STRM provides no facts or evidence to confirm the allegation, which prevents the labour authority from taking any action to defend the workers who were members of branch 187, in accordance with labour legislation. The Government also states that it is unlikely that the workers were discriminated against through the application of the “exclusion clause”, since this was rendered obsolete and superseded by the jurisprudential opinion issued by the Supreme Court of Justice of the Nation in April 2001. Furthermore, it should be noted that, on 30 November 2012, amendments to the Federal Labour Act repealed the last paragraph of article 395 that allowed the inclusion of the so-called exclusion clause on expulsion in collective bargaining agreements.
10. 630. With regard to the allegation that the JLCADF denied the STRM bargaining rights under the collective agreement of Atento Servicios SA de SV, the Government states that, while it is true that on 15 December 2009 the STRM submitted a request to the JLCDAF for bargaining rights under the company’s collective agreement, it is incorrect to assert that the documents required for processing the request were attached. Indeed, it did not even indicate as a minimum requirement the company’s activities to be covered under the collective bargaining agreement, nor attach the minutes of the meeting in which the workers authorized it to submit a request for bargaining rights under the collective agreement, nor produce a membership list of the workers it claims to represent. For this reason, on 18 January 2010 the JLCDAF requested it to produce the documentation.
11. 631. Unions represent workers in defending their individual rights, as provided under article 375 of the Federal Labour Act, and this representation must be authorized by the workers themselves, particularly in regard to bargaining rights under a collective agreement or a strike, which directly affect job security and therefore the income of workers’ families. Workers must therefore be informed of what the union is going to do and thus must authorize it through the minutes of the meeting held to decide on the action in question to be carried out. This is what the JLCADF asks for as a court of conscience that ensures and protects workers’ rights.
12. 632. In view of the foregoing, the fact that the JLCADF requested the STRM to provide the missing documents in no circumstances involved any violation of labour legislation, or of any international conventions to which Mexico is a party. On the contrary, it sought at all times to protect the right of workers to form a union, safeguard that right and provide legal security to the workers themselves.
13. 633. Notwithstanding the omissions, and to avoid leaving the workers that the STRM claimed to represent without representation, the JLCADF suggested holding a conciliation, petition and exceptions, evidentiary and resolution hearing on 2 July 2010, which took place at the offices of the labour authority, as a neutral location to guarantee that the workers could cast their votes freely and in secret. The ballot was conducted on the allotted day and time and steps were taken, where necessary, to ensure that the 1,666 workers of Atento Servicios SA de CV could cast their votes in a businesslike, expeditious and peaceful manner and that voting took place in a transparent manner in the presence of the JLCADF authorities and the worker and employer representatives assigned to it. Of the 1,666 workers who voted, 372 voted for the STRM and 1,294 for the SPTCTRM. It should be stressed that the JLCADF is not responsible for granting or denying bargaining rights under a collective agreement. This is decided based on the wishes of the workers, who choose the union they would like to join, and the authority only endorses proceedings and must comply with their will.
14. 634. With regard to the union ballot that took place on 2 July 2010, the authority makes it clear that the number given of 1,500 workers who came to vote is inaccurate, as the ballot record shows that there were 1,666; and if they arrived before the time allotted by the authority, the JLCADF was not at fault, since it is the responsibility of the unions in dispute to inform workers of the time of the ballot. It should be noted that it is absolutely legal for the complainant union, the respondent company and the co-respondent union to be present at ballots. The labour authority cannot therefore prohibit or prevent any of the three parties in dispute (STRM, Atento Servicios SA de CV and SPTCTRM) from being involved in the ballot.
15. 635. It is also untrue that the ballot result, 1,230 votes for the SPTCTRM and 375 votes for the STRM, was obtained by altering the list of workers entitled to vote, as both the STRM and the SPTCTRM had sight of the employee–employer contribution settlement certificates and made any objections they considered relevant; thus both submitted a list of workers with voting rights. However, the STRM and the SPTCTRM, only wishing workers who were members to vote, conducted the ballot with the voting list provided by the company, which was based on the settlement certificates of the Mexican Social Security Institute (IMSS). Neither the STRM, nor the SPTCTRM, therefore, were rendered defenceless.
16. 636. Concerning the actions of the District Federal Local Conciliation and Arbitration Board in the union ballot, throughout the process the JLCADF adhered to the powers legally conferred on it. Evidence of this is that on 13 December 2010 it issued an award in the current dispute, based on the results of the ballot that took place on 2 July 2010. The ballot process provides the main evidence in the bargaining rights procedure because through it workers express their free will to choose the union they wish to join. In this specific case, the majority voted for the SPTCTRM, a fact that leaves no doubt that the latter merited union representation.
17. 637. On 17 January 2011, the STRM lodged a direct appeal with the First Circuit Collegiate Labour Tribunal against the award issued by JLCADF Special Board No. 10, the latter being the authority in charge, seeking a revote. On 8 August 2011, the Fifteenth First Circuit Collegiate Labour Appeals Tribunal granted the appeal in favour of the STRM, thereby ordering the JLCADF to conduct a revote, as noted below:
    • The award is declared void and proceedings shall be replaced to meet the essential requirements of the ballot process, duly respecting, should the workers invited to the ballot submit objections, the process provided for in section V of article 931 of the Federal Labour Act, namely to summon the parties to a hearing prior to the ballot; and, as previously, to continue with proceedings in accordance with the law.
18. 638. In accordance with the decision handed down by the Fifteenth First Circuit Collegiate Labour Appeals Tribunal, the JLCADF set the new date for the ballot for 31 October 2011, at 5 p.m. in their facilities. Prior to the ballot, the JLCADF set aside 9 a.m. on 18 August 2011 for the hearing of incidental objections to the documents produced by the respondent. Having notified the parties in person of those provisions, the hearing took place.
19. 639. In this context, the STRM states that the JLCADF established certain “criteria” for the presentation of evidence, which is untrue, as the decision handed down on 19 October 2011 by the JLCADF provides that the ballot will be conducted based on the IMSS employee–employer contribution assessment certificate for the month of November 2009 and that, in accordance with the provisions of section IV of article 931 of the Federal Labour Act, the only workers entitled to cast their vote were those who were working prior to the submission of the request for bargaining rights, which was 15 December 2009, precisely to prevent the company from dismissing the workers on its books at that time and getting those who came after that date to vote. It also notes the time and place for conducting the ballot proposed by the complainant unions and the co-respondent union as 31 October 2011 at 5 p.m., through a free and secret ballot. The decision to that effect is quoted as follows:
    • Auxiliary Secretariat for Collective Disputes. Union of Telephone Operators of the Mexican Republic v. Atento Servicios SA de CV and Progressive Union of Communication and Transport Workers of the Mexican Republic. File No. 475/2009 and subsequent file Nos 476/2009 and 04/2010.
    • Mexico, Federal District on 19 October 2011. In addition to those documents, for the appropriate legal purposes, reference is made to letter No. 211.2.2.4178, dated 17 October of that year, sent by the Director for Registration and Updating, Directorate-General for the Registration of Associations of the Ministry of Labour and Social Welfare, to which is attached a certified copy of letter No. 211.2.2.4577, dated 10 November 2010, through which note is taken of the list of union members of the Progressive Union of Communication and Transport Workers of the Mexican Republic and from which it is clear that no worker of the company Atento Servicios SA de CV is recorded on the list. Consequently, to comply fully with ruling No. 203/11, handed down by the Fifteenth Federal District Collegiate Labour Tribunal, this Board states that the ballot was conducted based on the IMSS employee–employer contribution assessment certificate for the month of November 2009, which is appended to the documents for the purpose of continuing with the procedural consequential action, based on the provisions of article 931 of the Federal Labour Act and case law No. 15012008, issued by the Second Chamber of the Supreme Court of Justice of the Nation.
    • It is noted that the ballot proposed by the complainant unions, under file Nos 475/2009, 476/2009 and 4/2010, and by the co-respondent union will take place on 31 October of the current year at 5 p.m., through a free and secret ballot. Due to the number of workers who will attend the prescribed proceedings and to comply with the provisions of article 720 of the relevant law, an adjudicator has been commissioned to convene with the parties involved in this dispute, on the ground floor of the annex of the Federal District Local Conciliation and Arbitration Board, entrance via Dr. Andrade No. 45, Col. Doctores, Delegación Cuauhtemoc, of this city, and present the evidence under the terms and conditions accepted by the Board. To ensure that the aforementioned proceedings are carried out expeditiously and efficiently, the IMSS employee–employer contribution assessment certificate, which will serve as the basis for the ballot, will be divided into alphabetical order and the workers must present themselves to be identified at the table with the letter corresponding to the initial of their first surname. The adjudicator should identify the workers involved in the ballot proceedings only with the official document accepted by this Board such as voting credentials, passport, military service identity card and driving licence. Should a worker present a wage slip as proof of identity, this must cover the period from 30 November to 11 December 2009. Three representatives should be present in the aforementioned proceedings, with documentary proof of identity, for each of the parties involved in this dispute, one of whom will be appointed by the parties at the beginning of the proceedings in question, to observe the identification process and give out the ballot papers to the persons who are entitled to vote according to the specified voting list. Each representative will be at the entrance when proceedings begin, noting even cases where workers fail to come to ensure that presentation of the aforementioned evidence is complete, which will guarantee the ballot is impartial. The adjudicator should prepare a detailed written record of the ballot proceedings, indicating where appropriate any workers that had been dismissed after the date of submission of the request. In order for the parties to be certain that the workers are those entitled to vote, and to decide on any options that might need to be made, once identified, indelible liquid will be applied to their right thumb and they will be given a ballot paper on which they will cast their vote, in accordance with article 17 of the Federal Labour Act, article 24, section VIII, of the Rules of Procedure of the Local Conciliation and Arbitration Board and article 265(4)(b) of the Federal Code of Electoral Institutions and Procedures. After voting, their piece of identity will be handed back to them and their exit will be via Dr. Río de la Loza No. 68, Col. Doctores, Delegación Cuauhtemoc, of this city. Votes of trusted workers will not be counted and only the votes of unionized workers who come to the ballot will be taken into consideration. In accordance with article 717 of the Federal Labour Act, the requisite days and times will be made available to ensure that the adjudicator does not have to cancel the ballot that has been called. Should the complainant unions and the co-respondent union summoned fail to appear for the ballot and if the workers do not come on the date and at the time specified, the aforementioned evidence will be declared defective, in accordance with articles 899 and 780 of the Federal Labour Act. In accordance with article 688 of the Federal Labour Act, the Ministry of Public Health has been assigned to assist the work of this Board by providing the necessary security personnel to protect the safety of the workers involved in the aforementioned ballot. The parties will be notified in person. Set forth and signed by the Head of the Federal District Local Conciliation and Arbitration Board, Mr. Ramón Montaño Cuadra, together with the Representatives of Capital and Labour of Special Board No. 10, Ms Luz María Morales Uribe and Ms Margarita Albarrán Servín, respectively, I hereby certify before the Secretary for Collective Bargaining Matters, Ms Guadalupe Esther Guerrero López.
20. 640. The Government adds that on 31 October 2011, as stated, the ballot began in the JLCADF facilities, with its authorities and representatives of the Federal District Human Rights Commission (CDHDF) as observers to witness the proceedings.
21. 641. While proceedings were under way, with the parties present, and those in charge preparing to receive the workers so that voting could take place, there were confrontations and provocations between the supporters of both unions, resulting in violence, which forced the President of the JLCADF to suspend the ballot due to a lack of guarantees in the process. For further reference, the JLCADF submitted as evidence two CDs with photographic evidence and a video recording of the events, provided by the CDHDF.
22. 642. On 3 November 2011, the date was once again set for the ballot that had been suspended on 31 October 2011, which took place on 9 November 2011 at 4 p.m., with the intervention of the legal representatives of the STRM, Atento Servicios SA de CV and the SPTCTRM. To ensure continued due diligence in the ballot process, about which objections had already been made, only votes from workers were accepted.
23. 643. It should be noted that the labour authority had no knowledge of how the company or the unions transported their workers, as it is a procedural requirement of the parties proposing the ballot.
24. 644. In the aforementioned ballot, 579 workers came to cast their vote, of which only 47 voted for the STRM. Thus, the voting results, once again, went against it, making it clear that it did not represent the majority of the workers in Atento Servicios SA de CV, given that it was the workers themselves who decided that it did not represent them. This process was carried out in accordance with national labour legislation.
25. 645. Lastly, it is untrue that the JLCADF has refused to resolve the question of bargaining rights under the collective agreement because on 6 December 2011 it issued the corresponding award. The award had not been decided in August, which was not the fault of the JLCADF, but due to the various challenges made by the STRM, as a legally protected right to defend its interests and refer to other courts to contest the award not issued in its favour.
26. 646. The Government concludes by stating that: (a) national labour legislation sets out the penalties to be imposed on any employer or employers’ organization that infringes the individual and/or collective rights of the workers with whom they have an employment relationship. However, it should be noted that, after analysing the complaint lodged by the STRM, it is clear that there is not sufficient information to determine whether there is any violation of and non-compliance with the legal framework, or that there has been any interference or omission by the Mexican State that might have affected any right of the workers in Atento Servicios SA de CV, as the complainant presents no evidence of allegations, actions, lawsuits and infringements to support such claim. Consequently, it reiterates that Mexican labour legislation ensures that all workers have the legal resources and means at their disposal to approach the authorities to defend their labour rights; that there are bodies such as PROFEDET, which provide guidance and free legal advice for the protection of workers’ individual and collective rights; and that it is vital for workers to report any acts by employers that affect their labour rights to the appropriate authorities, so that the relevant authorities can punish them and act in their defence, as clearly provided in law; and (b) from the facts presented by the complainant union, it is clear that the actions of the JLCADF and the relevant authorities were at all times carried out in a timely and appropriate manner, within the legally established terms and conditions, in conformity with legislation and in full compliance with the powers conferred upon them by its own regulations. A case in point is the request for the recognition of STRM branch 187, which was processed and granted, resulting in it being legally recognized. Another is the ballots that were conducted following the request for bargaining rights under the collective agreement of Atento Servicios SA de CV, in which JLCADF procedures adhered to legislative provisions, unfailingly safeguarding workers’ rights and safety, complying with the legally required procedure and respecting the wishes of the workers in the free choice of the union that should manage the collective bargaining agreement, given that it is not the JLCADF that grants bargaining rights, but the workers through their vote. The authority only legitimizes the decision when issuing the award based on the results, with absolute transparency and the participation of all parties involved.
27. 647. In no circumstances can it be considered that there has been any omission on the part of the Mexican State, either directly or through the conduct of the authorities involved, as its actions have unfailingly been in accordance with legislation and, in this regard, the principles contained in ILO Conventions Nos 87 and 98 have not been violated. On the contrary, the Government has taken clear actions to strengthen freedom of association, the right to organize and to collective bargaining, proof of which can be seen in the adoption of amendments to the Federal Labour Act, published in the Official Gazette of the Federation on 30 November 2012 in order to ensure compliance.

C. The Committee’s conclusions

1. 648. The Committee observes that in the present case the complainant union (STRM) alleges: (1) anti-union dismissals following the establishment of its branch 187 in Atento Servicios SA de CV (six named members in July 2009 and another six in October 2009, and 50 unnamed members who worked in the company’s Pachuca and Toluca centres); (2) union security clauses in favour of the SPTCTRM that allow the employer to dismiss workers who are not members of the STRM. The complainant also alleges automatic membership of this union upon recruitment; (3) various irregularities (which the complainant details in its complaint) by the company, the SPTCTRM union and the authorities in the second ballot process requested by the STRM on two occasions (December 2009 and following a decision of the relevant judicial authority (under an appeal) approving a new ballot requested by the STRM, which finally took place in November 2011). According to the complainant, the irregularities referred to resulted in the STRM not winning the ballot.
2. 649. The Committee notes the Government’s statements denying the violation of the ILO Conventions on freedom of association and according to which: (1) the STRM fails to provide the names of (all) the dismissed workers, or give the alleged unjustified reasons, or to state whether they took any legal, judicial or other actions; (2) STRM branch 187 obtained its recognition within the legal deadlines; (3) the STRM has not provided evidence to support its allegation of mass and enforced membership of the other union and, in any case, exclusion clauses (union security clause) were declared unconstitutional by the Supreme Court of Justice in 2001 and the same criteria were followed in the last reform of the Federal Labour Act of 30 November 2012, which also includes union transparency provisions; (4) in both ballots, the workers’ vote results verified by the authority (the second of which was after the authority had cancelled the first at the request of the complainant union) went against the STRM; (5) legislation provides penalties for a violation of the individual or collective rights of workers and remedies to put them into effect. The Government states that the complaint is subjective and lacks evidence and the November 2011 ballot was conducted in accordance with the law. In general, the Committee observes that the allegations and the Government’s reply differ on many points.
3. 650. Firstly, the Committee wishes to note the difficulty in considering the complaint, partly because, according to the complainant union, union security clauses were used to benefit the other union, because of the lack of information from the STRM on the possible number of appeals filed by members dismissed or disadvantaged (the complainant union also recognizes that in some periods there was restructuring with lay-offs) and partly because some pieces of information raised questions. First, the ballot results which, although clearly in favour of the SPTCTRM, gave surprising results in terms of figures (according to the Government, in the first ballot 372 workers voted for the complainant union – STRM – and 1,294 for the SPTCTRM and in the second, out of a total of 579 workers only 47 voted for the STRM). Second, the fact that the authority (Federal District Local Conciliation and Arbitration Board), when ordering a second ballot, noted in its decision that the SPTCTRM union member voting list “clearly contains no record of any company worker”. Third, the finding that the complainant union (STRM) fails to state whether or not it appealed to the authorities against the last ballot (in the previous ballot the STRM had obtained a decision from the authority to repeat the ballot). Furthermore, the Committee notes that, as the authority cancelled the first workers’ ballot to determine the most representative union for bargaining rights under the collective agreement, it will only examine issues relating to the November 2011 ballot and the dismissals that the complainant union considers to be anti-union.
4. 651. In these circumstances, the Committee emphasizes the importance that it attaches to the fact that workers and employers should in practice be able to establish and join organizations of their own choosing in full freedom and be able to freely choose which organization will represent them for purposes of collective bargaining. The Committee observes in this case certain aspects of concern in the voting process (the atmosphere of confrontation and confusion; the presence of the police; serious problem in the voting lists for the balloting and suspicions around the fact that many workers did not vote, suggesting that workers may not have had sufficient time since the convocation). The Committee requests the complainant union to provide information on any appeal filed by its members against dismissals or anti-union practices and their outcomes, and against the last ballot (November 2011) obtained from the authority to determine the union with bargaining rights.
5. 652. While stressing that the appropriate procedure for the verification of facts and alleged irregularities in a ballot process for bargaining rights under the collective agreement between workers or members of rival organizations (the versions given by the union and the Government are conflicting in this case) is primarily the responsibility of the national bodies, the Committee wishes to emphasize the importance it attaches, if there is a new ballot, to the authorities providing the safeguards necessary to avoid all alleged irregularities, thus guaranteeing that the affected workers have a full and fair opportunity to participate, in an atmosphere of calm and security. The Committee requests the Government to send its observations on the finding of the JLCADF that the SPTCTRM union member voting list contained no record of any company worker.

The Committee’s recommendations

1. 653. In light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the complainant union to provide information on any appeal filed by its members against dismissals or anti-union practices and their outcomes, and against the second ballot obtained from the authority to determine the union with bargaining rights.
   • (b) The Committee requests the Government to provide its comments on the claim of the JLCADF that the SPTCTRM union member voting list contains no record of any company worker.
   • (c) The Committee wishes to emphasize the importance it attaches, if there is a new ballot, to the authorities providing the safeguards necessary to avoid all alleged irregularities, thus guaranteeing that the affected workers have a full and fair opportunity to participate, in an atmosphere of calm and security.