Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

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

The Committee notes the observations of the Authentic Workers’ Confederation of the Republic of Mexico (CAT), the International Confederation of Workers (CIT), the Regional Confederation of Mexican Workers (CROM), the Confederation of Workers of Mexico (CTM), the National Union of Workers (UNT) and the Confederation of Industrial Chambers of the United States of Mexico (CONCAMIN) provided with the Government’s report relating to matters examined in this comment.

The Committee also notes the observations of the UNT, received on 24 July 2021, and of IndustriALL Global Union (IndustriALL) on 1 September 2021, relating to matters examined in this comment and allegations that are the subject of case No. 2694 currently before the Committee on Freedom of Association, as well as the Government’s response to those.

Trade union rights and civil liberties. In its previous comment, the Committee noted that in their 2018 observations, the International Trade Union Confederation (ITUC) and the UNT alleged further acts of anti-union violence, including the murder on 18 November 2017 of two miners who were participating in a strike in the state of Guerrero, attacks on over 130 unionized university workers in San Cristobal de las Casas on 9 February 2017, as well as the death of a trade union activist in January 2018 after receiving threats relating to the promotion of a new union. The Committee notes that the Government indicates its willingness to provide its comments on the observations of the social partners, expressing its readiness to take the appropriate measures and thanking the organizations that provide additional information. The Committee also notes that the observations of IndustriALL highlight the need to make progress in eliminating impunity and punishing those responsible for anti-union violence. The Committee once again invites the organizations concerned to provide the Government with any additional information that they have and requests the Government to take the necessary measures to investigate the allegations and to punish and eradicate all acts of anti-union violence.

Article 2 of the Convention. Conciliation and arbitration boards. Constitutional reform of the labour justice system. In its previous comment, having noted the concerns expressed by the social partners and the information provided by the Government, the Committee encouraged the submission of the legislative texts relating to the constitutional reform of the labour justice system to a broad process of tripartite consultation. The Committee notes the Government’s indication that the implementation of the new Mexican labour model is progressing successfully in accordance with the Convention and the comments of the ILO supervisory bodies. The Government has provided detailed information on its process of implementation, referring to the work of the Coordination Council for the Implementation of the Reform of the Labour Justice System (which approved a three-stage strategy to be completed in three years, which is one year earlier than scheduled in the reform); recognizing the complex cultural change this implies, which requires time and resources; and emphasizing its priority nature and the full commitment of the authorities in this respect. With regard to tripartite consultation, the Government highlights that: (i) the reform is the result of an ongoing social dialogue between the national authorities and specialists, academics, trade unionists, entrepreneurs and civil society actors; (ii) with the purpose of enriching the discussion and exchanging views with the sectors involved, from 25 February to 6 March 2019, the Chamber of Deputies of the Congress of the Union convened representatives of the executive and judicial branches, labour courts, bar schools and associations, academics, civil society bodies and associations, trade union organizations and the general public to participate in six public meetings on the labour justice reform, organized in thematic roundtables with 62 speakers; (iii) working groups Nos 2 (on collective law) and 4 (on labour conciliation and registration centres) were composed of trade union and employer representatives from various organizations; (iv) during this open parliamentary work, a transparent and pluralistic dialogue was maintained with the most representative workers’ and employers’ organizations in the country, as well as with academics, experts and civil society organizations - including the complainant organizations in Case No. 2694 before the Committee on Freedom of Association; (v) the Senate of the Republic carried out a similar open parliamentary exercise, convening all sectors involved in the reform. Regarding certain concerns raised in the previous observation, the Government indicates that, while there was a proposal for a regulatory Act in 2017 on a tripartite composition of the fundamental body responsible for upholding union democracy (the Federal Labour Conciliation and Registration Centre (CFCRL)), it was not adopted, and therefore recalls that this is a decentralized body, under the Secretariat for Labour and Social Welfare (STPS), which has a Government Board composed of the heads of the Ministry of Finance, the National Institute for Transparency, Access to Information and the Protection of Personal Data, the National Electoral Institute and the National Institute of Statistics and Geography. Lastly, the Government denies the allegations that this dialogue was confined to certain organizations, recalls the diversity of partners and affirms that social dialogue has been strengthened in recent years.

The Committee also notes the following observations of the social partners in this regard: (i) the CONCAMIN emphasizes the need to ensure that when the new labour courts become operational, they genuinely address the aspects of the activities of the boards that were criticized; (ii) the CAT considers that in the application of the reforms the authorities have taken on greater powers, thereby undermining trade union autonomy; (iii) the CIT highlights the difficulties of implementing the reforms in a context in which independent trade unionism is a minority, most collective agreements have not been legally validated and it will take a long time to replace the boards, which continue to be an obstacle to the exercise of freedom of association; (iv) the CROM considers that the CFCRL registration system involves government interference; (v) the UNT indicates that the reforms have been carried out without real or genuine ongoing institutional and social dialogue with the representative organizations, but through a pretence of open parliamentary processes based on direct invitations, without the participation of the social partners; and (vi) IndustriALL, while recognizing the significant progress made in implementing a real labour reform that could transform the existing model, emphasizes that practices that limit freedom of association persist, particularly in states outside the federal capital, reports that enterprises and corporate unions continue to control the boards, and that it is necessary to establish genuine social dialogue with independent and democratic trade unionism. In light of the above, and while welcoming the efforts made, the Committee encourages the Government to continue to ensure that the following stages of the implementation of the labour reform are submitted to broad and effective tripartite consultation, in order to take note of the concerns raised by the social partners and consider the measures necessary to ensure full respect of the Convention in law and practice. Reiterating that the technical assistance of the Office remains available to it, the Committee requests the Government to keep it informed of any developments in this respect.

Trade union representativity. Trade unions and protection contracts. In its previous observations, the Committee reiterated its request to the Government, in consultation with the social partners, to continue taking the necessary measures to resolve the problems raised by the phenomenon of protection unions and contracts. In this regard, the Government indicates that the necessary legislative and regulatory adjustments have been made to implement a new industrial relations model that guarantees the full exercise of freedom of association and workers’ representation in collective bargaining. Among the main amendments made to Mexican labour law, the Government emphasizes the processes to: (i) legally validate collective labour agreements signed before the entry into force of the reform, through majority approval by the workers, expressed through personal, free, secret and direct ballot. To this end, on 31 July 2019, a Protocol for the legal validation of existing collective agreements was published and, on 1 May 2021, the verification function was transferred to the CFCRL (while the CFCRL was still not operational, the STPS had been empowered to verify the legal validation procedures). The Government indicates that, during the reporting period, 2,231 consultations regarding legal validation were held, in which more than 348,000 workers cast personal, free, direct and secret ballots to determine whether they agreed to maintain 1,297 collective labour agreements; (ii) demonstrate that, prior to the negotiation of an agreement, the union is representative of at least 30 per cent of the workers, through an attestation issued by the CFCRL, and that ballot processes are personal, free, secret and direct, and are also applicable to the election of union officers; and (iii) approve the content of the collective labour agreements negotiated by the union, following the completion of negotiations with the employer, through majority approval expressed through the personal, free, secret and direct ballots of the workers. This requirement for consultation also applies to the general revision of the agreements (which must be carried out every two years), as well as to disputes between unions over their status to negotiate agreements (which are heard by impartial and independent courts). In its report, the Government provides details of the implementation of these processes and considers that, through these processes and the establishment of the CFCRL, the problem of agreements signed without the knowledge or consent of the workers has been addressed.

With regard to the observations of the social partners, the CIT warns of the persistence of the problems related to protection unions and contracts despite the reforms, and refers to an estimate that protection contracts account for 80 per cent of collective labour agreements. IndustriALL, while recognizing the Government’s ongoing efforts to advance with the reform that may eradicate the system of protection unions and contracts: (i) denounces the proliferation and the signing of protection contracts by the public authorities; (ii) refers to specific cases that illustrate how the system operates (for example in a transnational car company and the petrol supply sector); (iii) denounces the repression of trade union industrial action (for example, in sectors such as the electronics industry in the state of Jalisco); (iv) highlights the significant challenges in practice in guaranteeing that the legal validation processes are compliant with freedom of association (citing examples such as failing to implement results that did not favour the protection union and obstacles to the registration of independent organizations); and (v) refers to the report of the Board of Independent Labour Experts of Mexico of 7 July 2021, which lists the strategies used to intimidate workers and prevent them from voting. Further, IndustriALL refers, as an example of an ultimately satisfactory resolution, to the case of a union in an automobile company in Silao, in which the workers reported intimidation and serious irregularities in the process for the legal validation of the collective labour agreements and had recourse to the Canada, United States and Mexico Rapid Response Labour Mechanism (T-MEC), through which a new vote was called in August 2021; the validation process was monitored and supervised by the National Electoral Institute together with a mission of ILO observers, as a result of which the protection contract was rejected.

The Committee notes that in response to IndustriALL, the Government: (i) provides updated information on the application of the procedures referred to above (as of 12 October 2021, the number of legal validation processes had risen to 1,890 collective agreements covering some one million workers); (ii) denies that practices of complicity persist between employers and workers with the endorsement of the labour authority and rejects any criticism of the impartiality or integrity of the officials or operators of the labour justice system, as well as of their selection process; (iii) highlights that the reports of the Board of Independent Labour Experts have also recognized the progress made by the Government, especially considering that it has been made in the context of the pandemic, and have recognized that some of the changes of the reform have yet to be implemented, and thus it is therefore necessary to wait before a full evaluation can be conducted; (iv) refers to the lessons that have been drawn from the legal validation processes carried out, thereby improving the verification functions and reforming the Protocol referred to above; and (v) refers to the validation process in Silao as a positive example that illustrates the Government’s commitment to implement the reform and establish a new industrial relations model based on greater transparency and union democracy. In light of the above, the Committee encourages the Government to take the necessary additional measures to ensure that the legal validation processes of collective agreements, both in their rules and their application in practice, guarantee full and timely respect for freedom of association. While welcoming the progress made in implementing the reform, the Committee notes with concern the continuing allegations of violations of the Convention and invites the Government, in consultation with the social partners, to continue taking any further measures that may be necessary to find effective solutions to the problems raised by the phenomenon of protection unions and contracts for workers in relation to their rights to establish and join organizations of their choosing.

Publication of the registration of trade unions. In its previous observation, the Committee requested the Government to provide information on the legal requirement for conciliation and arbitration boards to publish the registration and statutes of trade unions, and any impact that the implementation of the new constitutional reform and its secondary legislation has had on the procedure for trade union registration, including the publication of the registration and statutes of trade unions. In this regard, the Government indicates that: (i) the reform of 1 May 2019, in accordance with the 2017 constitutional reform, transferred the registration functions for trade unions and collective agreements to the CFCRL, which includes the obligation to publish the corresponding registrations; (ii) in accordance with the implementation plan for the new labour model, the CFCRL will take up its registration functions fully on 11 October 2021, from which date there will be a single register of unions and contracts at the national level, under the responsibility of the CFCRL (up to now, these functions have been exercised only in the bodies covered by the first stage of the implementation of the new labour model); (iii) the CFCRL, the STPS and the conciliation and arbitration boards have worked in coordination to digitalize all the registry files and transfer them within the legal deadlines to the CFCRL, so that it can meet the obligation to publish them once this work is completed; (iv) notwithstanding the above, new registrations of unions and collective labour agreements by the CFCRL are already available on its website, which will gradually include the files of the unions and agreements currently registered by conciliation and arbitration boards; this is to be completed between the second half of 2021 and the first half of 2022; and (v) as of 17 September 2021, 95.5 per cent of unions registered at the federal level and 38 per cent of unions registered at the local level have adapted their statutes to the applicable rules of the new labour register.

The Committee also notes that in their observations: (i) the UNT states that in July 2021, the status of publication was still not clear, and the collective labour agreements registered on a daily basis were still not available; and (ii) IndustriALL expresses concern that as of 2021 the legal obligation to publish the registration and statutes of unions, and the existing collective agreements, has still not been fully complied with, and indicates that in practice many workers covered by collective labour agreements are still unaware that these contracts exist and cannot obtain a copy of them.

Taking due note of the recent progress in implementing a single register of trade unions and agreements at the national level under the responsibility of the CFCRL, as well as the persistence of allegations of difficulties in accessing information on existing trade unions and collective agreements in practice, the Committee requests the Government to follow up on these allegations and to continue providing information on developments in this respect.

Articles 2 and 3. Public sector workers. The Committee recalls that for many years it has been asking the Government to take measures to amend the following provisions that limit trade union pluralism in state agencies and the possibility of the re-election of union officials: sections 68, 69, 71, 72, 73, 75, 79 and 84 of the Federal Act on State Employees (LFTSE), and the legislative declaration establishing the trade union monopoly of the National Federation of Banking Unions (FENASIB). The Committee has repeatedly noted the Government’s statements that, in accordance with the case law of the Supreme Court of Justice, these legislative restrictions on the freedom of association of public servants are not applied, emphasizing that the re-election of trade union officers is possible and that multiple unions can be registered, and the fact that the applicant unions are in the same body is not an obstacle to their registration. The Committee notes that, in addition to reiterating these explanations, the Government refers to the Decree reforming, adding and repealing various provisions of the LFTSE, giving effect to article 123(b) of the Constitution.

The Committee notes with satisfaction that this Decree introduces the following amendments to the LFTSE: (i) it repeals section 68 (which established that there would be only one union in each agency); and (ii) it amends section 69 (removing the ban on trade unionists leaving the union of which they have become members and introducing the right of workers to join and establish unions without prior authorization), section 71 (removing from the requirements for establishing a union the fact that “there is no other union group with a greater number of members within the same state agency”), section 73 (removing the reference to “when a different union group that is in the majority is registered” as grounds for the dissolution of the union), section 79 (removing the prohibition on unions of public servants joining trade union organizations of workers or rural workers) and section 84 (removing the reference to the Federation of Unions of State Employees as the single central trade union recognized by the State).

However, the Committee notes that no amendments have been made in the LFTSE to section 72 (in which the problematic clause remains that “the Federal Conciliation and Arbitration Court, upon receiving the application for registration, shall verify by the means it deems most practical and effective, that there is no other trade union within the state agency concerned and that the applicant has a majority of workers in that agency before proceeding with registration, where applicable”) and section 75 (maintaining the prohibition on re-election within trade unions). The legislative declaration establishing the trade union monopoly of the FENASIB (section 23 of the Act issued under article 123B(XIIIbis) of the Constitution) has also been maintained.

The Committee also notes the observations of IndustriALL which: (i) denounces the persistence in the centralized public sector of the model of union control through union organizations whose leadership is close to those in political power, and that, although the unions of decentralized organizations have used case law to escape this control system, their freedom of association amounts to nothing because of the impossibility of exercising their collective bargaining rights and the right to strike; and (ii) alleges that rank-and-file workers have been illegally categorized as “personnel in positions of trust”, who would be systematically excluded from the right to freedom of association; and that the Federal Conciliation and Arbitration Board has adopted a criterion that denies these workers the possibility of having their own union and imposes the control union on them.

The Committee requests the Government to provide its comments in this respect, specifying whether workers in positions of trust covered by the LFTSE have the right to join a trade union or establish their own trade unions, and to provide information on the exercise of this right. It also requests the Government to continue taking the necessary measures to ensure that all public sector workers, with the only possible exception of the police and the armed forces, enjoy the guarantees set out in the Convention in both law (pending the amendment of the above provisions) and practice.

Article 3. Right to elect trade union representatives in full freedom. Prohibition on foreign nationals becoming members of trade union executive bodies (section 372 of the Federal Labour Act). In its previous comments, the Committee has noted the Government’s indications that: (i) section 372 of the Federal Labour Act , which prohibits foreign nationals from becoming members of trade union executive bodies, was tacitly repealed by the amendment to section 2 of the Act, which prohibits any discrimination based on ethnic or national origin; and (ii) the registration authorities do not require trade union leaders to have Mexican nationality, and this prohibition is not applied in practice. The Committee notes that in its latest report the Government reiterates that the legislative restriction is not applied in practice, specifying that the registration authorities are not in a position to verify this. The Committee also notes that the UNT emphasizes in its observations the need to remove this prohibition and discrimination on grounds of nationality in order to bring the law into line with the Convention. Recalling once again the need to ensure the conformity of the legislative provisions with the Convention, even if they are in abeyance or are not applied in practice, the Committee requests the Government to take the necessary measures to amend section 372 of the Federal Labour Act with a view to making explicit the tacit repeal of this restriction.

The Committee is raising other matters in a request addressed directly to the Government.