Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

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

The Committee notes the observations of the IndustriALL Global Union (IndustriALL), received on 29 August 2014 and 1 September 2015, the National Trade Union of Workers in the Iron and Steel Industry, Derivatives, Similar and Related Products of the Mexican Republic (SNTIHAPDSC), received on 31 August 2015, the International Trade Union Confederation (ITUC), received on 1 September 2015, and the National Union of Workers (UNT), received on 10 September 2015. The Committee also notes the observations of the International Organisation of Employers (IOE), received on 1 September 2015, which are of a general nature.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 104th Session, June 2015)

The Committee notes the discussion on the application of the Convention that took place at the Conference Committee on the Application of Standards in June 2015.

Civil liberties and trade union rights. With regard to the murder of two rural workers’ leaders, referred to in its previous comment, the Committee notes the Government’s indication that: the victims were not dependent workers, but coffee producers; they were not members of any trade union; their complaints were related to the devastation caused by the hurricane and the issue of insecurity among the population; and the events were not related to the Convention.

The Committee notes with concern the allegations of the ITUC and IndustriALL relating to acts of violence against trade unionists, which refer to cases of attacks and arrests in the mining, telephone, electricity and footwear sectors, and protests by agricultural workers. The Committee requests the Government to provide its comments on this subject.

Article 2 of the Convention. Registration of trade unions. The Committee observes that the Committee on the Application of Standards requested the Government to fulfil without delay its obligation to publish the registration and by-laws of trade unions in the local conciliation and arbitration 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 Act. In this regard, the Committee notes that the observations of the SNTIHAPDSC allege delays and a lack of progress in implementing the provisions on the transparency and publicity to be given to trade union information, established in section 365bis of the Federal Labour Act (LFT).

The Committee notes the Government’s indication that: (i) transitional section 5 of the 2012 Decree amending the 2012 LFT provides for a period of up to three years to transform the conciliation boards into local conciliation and arbitration boards, for which purpose the respective legislative authorities must approve budgets to guarantee their operation in accordance with the LFT; (ii) the Ministry of Labour and Social Welfare and the Federal Conciliation and Arbitration Board publish registers of trade unions on their respective websites; (iii) the local boards of San Luis de Potosí and the Federal District have a section on their websites where registers of associations can be consulted, with over 650 and 900 registrations published, respectively; (iv) the other local boards are in the process of publishing this information and are still within the time limit established; and (v) the Government plans to promote the effective application of section 365bis of the LFT in the context of the National Conference of Conciliation and Arbitration Boards. The Committee notes the Government’s indication that, as an additional measure adopted to ensure trade union transparency, section 15 of the General Act on transparency and access to public information of 4 May 2015, requires administrative and judicial labour authorities to publish and update the information they have on trade unions. The Committee, taking due note of the measures indicated by the Government, firmly hopes that the legal requirement for all conciliation and arbitration boards to publish registers and by-laws of trade unions is met without delay. The Committee requests the Government to provide information in this regard.

Representativity of trade unions and protection contracts. The Committee observes that the Committee on the Application of Standards requested the Government to identify, in consultation with the social partners, additional legislative reforms to the 2012 Labour Act necessary to comply with the Convention, emphasizing that 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. The Committee notes that the observations received from the ITUC, IndustriALL and the SNTIHAPDSC all consider that the issue of protection unions and contracts is one of the most serious obstacles to the exercise of freedom of association in the country. These organizations report that: (i) non-democratic trade unions and employers are signing collective protection contracts without the participation or even the knowledge of workers, with the aim of reducing wages and preventing the establishment of independent trade unions; (ii) once a protection contract is registered, it is extremely difficult to establish an independent trade union in the enterprise and to conclude a legitimate collective agreement (IndustriALL emphasizes that the only means of challenging the control exercised by the protection union (elections and recounts to determine the title holder of the agreement) is not sufficiently regulated, grants broad powers to the labour authorities and can involve significant delays); (iii) the problem of protection unions and contracts persists and is affecting thousands of workplaces (the organizations describe recent examples that illustrate the difficulties experienced in establishing independent trade unions); (iv) the 2012 labour reform did not include the measures proposed to limit the practice of protection unions and contracts, in particular the proposal for section 388bis, which would have required the approval of collective agreements by workers (IndustriALL also proposes the simplification of trade union election and recount procedures, and the requirement for trade unions and employers to distribute copies of collective agreements to all the workers concerned); and (v) the Government has yet to give effect to the recommendations of the Committee on Freedom of Association and the Committee on the Application of Standards in this regard. The Committee notes that, regarding dialogue with the social partners to seek a solution to the issue of protection unions, the Government indicates that it has planned a meeting with the ITUC, and with the national organizations of employers and workers to address the matter. Furthermore, the Committee notes the Government’s indication that the National Conference of Labour Ministers issued a joint statement condemning any collusion that restricted the freedom of workers to decide who they want to represent them or their will to sign a collective agreement. The Committee requests the Government, in consultation with the social partners and in accordance with the conclusions of the Committee on the Application of Standards, to take all the necessary measures without delay to find effective solutions to the issues raised, and to provide information in this regard.

Articles 2 and 3. Possibility of trade union pluralism in state bodies and the possibility to re-elect trade union leaders. The Committee recalls that for years it has been commenting on the following provisions: (i) the prohibition of the coexistence of two or more unions in the same state body (sections 68, 71, 72 and 73 of the Federal Act on State Employees (LFTSE); (ii) the prohibition of trade unionists from leaving the union of which they have become members (section 69 of the LFTSE); (iii) the prohibition of unions of public servants from joining trade union organizations of workers or rural workers (section 79 of the LFTSE); (iv) the reference to the Federation of Unions of Workers in the Service of the State (FSTSE) as the single central trade union federation recognized by the State (section 84 of the LFTSE); (v) the legislative declaration establishing the trade union monopoly of the National Federation of Banking Unions (FENASIB) (section 23 of the Act issued under article 123(B)(XIIIbis) of the Constitution); and (vi) the prohibition of re-election in trade unions (section 75 of the LFTSE).

The Committee takes due note that the Government: (i) indicates that, in accordance with the case law of the Supreme Court of Justice, and with practices and customs, these legislative restrictions on the freedom of association of public servants are not applied; (ii) adds that the exclusion clause (whereby workers would lose their jobs if they gave up their membership of a trade union) is prohibited by section 76 of the LFTSE; and (iii) provides examples that illustrate the non-application of the provisions in question (the Government indicates that: there is more than one trade union in 13 state bodies; several trade unions of public servants have joined organizations of workers; four federations have been registered in addition to the FSTSE; several banking unions are not members of the FENASIB, as they are either independent or members of the UNT; and a number of trade union leaders have been re-elected). The Committee also notes the Government’s indication that the legislative authority is making efforts to update the LFTSE and that there are legislative initiatives to amend some of the sections concerned (68, 69, 71, 72 and 73). The Committee recalls the importance of amending or repealing, in relation to all of these issues, all provisions that are contrary to the Convention, even if they have been declared inapplicable or are not given effect, in order to promote legal security. The Committee notes the legislative initiatives indicated and requests the Government to take the additional measures that are necessary to amend all the restrictive provisions mentioned to bring them into conformity with national case law and the Convention. The Committee requests the Government to provide information on all developments in this regard.

Article 3. Right to elect trade union representatives freely. Prohibition on foreign nationals becoming members of trade union executive bodies (section 372(II) of the LFT). The Committee notes the Government’s indication that section 372(II) of the LFT, which prohibits foreign nationals from becoming members of trade union executive bodies, was tacitly repealed by the amendment of section 2 of the LFT, which prohibits all discrimination based on ethnic or national origin. The Committee also notes that the Government states that the registration authorities do not require trade union leaders to have Mexican nationality, and that this prohibition is not applied in practice. Noting with interest the Government’s indication that foreign nationals can become members of trade union executive bodies, and recalling 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(II) of the LFT, to provide explicitly that the restriction has been tacitly repealed, and to provide information on this subject, including whether the Government is aware of any foreign nationals who are members of particular executive bodies.

Application in practice. Conciliation and arbitration boards. The Committee notes the observations of the ITUC, IndustriALL and the SNTIHAPDSC, which report that the operation of the conciliation and arbitration boards is impeding the exercise of freedom of association, and which: (i) denounce the fact that the boards are controlled by federal Government and state bodies and lack the independence necessary for the discharge of their functions; (ii) allege that there is national consensus on the corruption and ineffectiveness of the boards (with particular reference to the critical conclusions of an April 2015 study on everyday justice by the Centre for Economic Investigation and Education (CIDE), conducted at the request of the President of the Republic); (iii) consider that the elections of workers representatives to such boards are not transparent and that the boards’ members may be subject to conflicts of interests, especially when workers are represented by protection unions; and (iv) propose the modification of the boards’ functions and powers, or their replacement, for example, by tribunals under the responsibility of the judicial authorities. The Committee observes that the Committee on Freedom of Association examined allegations of lack of impartiality in the operation of the conciliation and arbitration boards, invited the Government to initiate a constructive dialogue on the subject with the social partners and observed recently that the reform of the LFT was having a positive impact on the operation of the Federal Conciliation and Arbitration Board (see Case No. 2694, 370th Report, paragraph 567). The Committee requests the Government to provide its comments on this subject, and encourages it to continue examining, through constructive dialogue with the social partners, the issues raised by trade unions in relation to the conciliation and arbitration boards with regard to the exercise of the trade union rights enshrined in the Convention.

The Committee trusts that the Government will give full effect without delay to the conclusions of the Committee on the Application of Standards and reminds the Government that it can avail itself of the technical assistance of the Office.

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 2016.]