Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

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

The Committee notes the observations of the International Organisation of Employers (IOE) received on 1 September 2014. The Committee also notes the observations of the Confederation of Industrial Chambers of the United States of Mexico (CONCAMIN) appended to the Government’s report in which CONCAMIN states the importance of ensuring that the State can guarantee continuity of public services without prejudice to the right of workers’ to appeal to court. The Committee also notes the observations of the National Union of Workers (UNT) received on 1 September 2014 relating to issues examined by the Committee. The Committee lastly notes the observations of the International Trade Union Confederation (ITUC), received on 1 September 2014, relating to issues examined by the Committee and condemning events that constitute infringements of union rights, including the assassination, on 16 November 2013, of Mr Juan Lucena Ríos and Mr José Luis Sotelo Martínez, peasant leaders from the community of El Paraíso. Regretting that the Government has not supplied its comments on the 2010 observations of the ITUC, the Committee requests the Government to conduct investigations into the allegations contained in the 2010 and 2014 observations of the ITUC and to provide information on the results of those investigations.

Article 2 of the Convention. Register of trade unions. The Committee notes the adoption on 30 November 2012 of the decree which reforms, complements and repeals various provisions of the Federal Labour Act. The Committee welcomes the adoption of a series of provisions intended to strengthen the transparent and democratic functioning of trade unions in compliance with their autonomy, including the new section 365bis of the Federal Labour Act which provides for compulsory publication of trade union registrations and rules by the Secretariat of Labour and Social Welfare and the conciliation and arbitration boards. In this regard, the Committee notes that the UNT points out that the legal obligation to publish registrations of trade unions is not fulfilled in any of the local boards in the 31 states in the country. The UNT adds that the fact that registrations are not published at the local level encourages the persistence of false trade unions (so-called protection unions) which impede the exercise of trade union rights in full freedom. Noting that within the framework of Case No. 2694 before the Committee on Freedom of Association, the Government has committed to engaging in dialogue with the trade unions to seek a solution to the phenomenon of protection unions, the Committee requests the Government to include in those discussions the effective application, at the local level, of the legislation relating to the publication of trade union registrations and to report on any measures taken in this regard.

Articles 2 and 3. Trade union pluralism within state agencies and re election of trade union leaders. The Committee recalls that for many years it has been commenting on the following provisions:

• (i) the prohibition of the coexistence of two or more unions in the same state agency (sections 68, 71, 72 and 73 of the Federal Act on State Employees);
• (ii) the ban on trade unionists leaving the union of which they have become members (an exclusion clause under which trade unionists who leave the union lose their jobs) (section 69 of the Federal Act on State Employees);
• (iii) the ban on unions of public servants joining trade union organizations of workers or rural workers (section 79 of the Federal Act on State Employees);
• (iv) the extension of the restrictions applying to trade unions in general to the Federation of Unions of State Employees (section 84 of the Federal Act on State Employees, the only recognized federation);
• (v) the imposition by law of the trade union monopoly of the National Federation of Banking Unions (section 23 of the Act to regulate article 123(XIIIbis)(B) of the Constitution); and
• (vi) the ban on re-election in trade unions (section 75 of the Federal Act on State Employees).

The Committee notes that the Government once again indicates that, in accordance with the case law of the Supreme Court of Justice and of the Federal Conciliation and Arbitration Tribunal, based on the Federal Constitution, the above legislative restrictions to freedom of association of public servants are not applicable. The Committee also notes the Government’s indication that, under the constitutional reform concerning human rights adopted in 2011, ratified international treaties acquire direct applicability. The Committee requests the Government to take the necessary measures to amend the above legislative provisions in order to bring them into line with national case law and with the Convention. The Committee requests the Government to report on any development in this respect.

Article 3. Right to elect union representatives in full freedom. Ban on foreign nationals being members of trade union executive bodies (section 372(II) of the Federal Labour Act). The Committee notes with regret that the reform of the Federal Labour Act did not remove this prohibition and once again emphasizes that foreign workers should be allowed to take up trade union office, at least after a reasonable period of residence in the host country. The Committee requests the Government to take the necessary measures to amend the Federal Labour Act accordingly and to report on any developments in this regard.

Article 3. Right of workers’ organizations to organize their activities and to formulate their programmes. The Committee recalls that for many years it has been asking the Government to amend the legislation that recognizes the right to strike of state employees – including employees in the banking sector and those of many decentralized public bodies such as the National Lottery or the Housing Institute – only if there is a general and systematic violation of their rights (section 94, Title four, of the Federal Act on state employees, and section 5 of the Act to regulate article 123(XIIIbis)(B) of the Constitution). The Committee considers that, without prejudice to the limitations on the right to strike which may be applicable to workers engaged in essential services in the strict sense of the term or in services of critical importance, employees – including employees in the banking sector – who do not exercise authority in the name of the State should be able to exercise the right to strike irrespective of whether there is a general and systematic violation of rights. The Committee once again requests the Government to take the necessary measures to amend the above legislative provisions and to report on any developments in this regard.

Furthermore, the Committee recalls that several laws and regulations affecting the public service (the Act to Regulate Railways, the Act respecting National Vehicle Registration, the Act on General Channels of Communication and the Rules governing the Ministry of Communications and Transport) contain provisions for the requisitioning of staff where the national economy could be affected. While it notes the Government’s indication that in practice no requisitioning has been carried out in any of the channels of communication mentioned, the Committee recalls that the forced requisitioning of workers on strike would be justified only for the purpose of ensuring the operation of essential services in the strict sense of the term. The Committee therefore once again requests the Government to amend the legislation accordingly and to report on any developments in this regard.

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

[The Government is asked to reply in detail to the present comments in 2015.]