Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

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

The Committee notes with interest the approval on 20 September 2018 by the Senate of the Republic of the ratification of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

The Committee notes the observations of the Confederation of Industrial Chambers of the United States of Mexico (CONCAMIN) and the Confederation of Employers of Mexico (COPARMEX), transmitted with the Government’s report, on matters covered by the present comment. The Committee also notes the observations of the International Trade Union Confederation (ITUC), received on 1 September 2018, and the observations of the National Union of Workers (UNT) and the Union of Workers of the National Autonomous University of Mexico (STUNAM), received on 2 September 2018, and of the IndustriALL Global Union (IndustriALL), received on 10 September 2018, on matters covered by the present comment. The Committee also notes the reply by the Government to the observations of the ITUC and IndustriALL of 2017, providing information on the consultation process which accompanied the constitutional reform and responses to allegations of specific violations. The Committee also notes, as indicated by the Government, that some of the allegations made in these observations are the subject of cases currently before the Committee on Freedom of Association, and particularly Case No. 2694, to the examination and recommendations of which the Committee of Experts refers. The Committee requests the Government to continue providing its comments on the other observations relating to the application of the Convention in practice which are not covered by Case No. 2694.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 107th Session, May–June 2018)

The Committee notes the discussion on the application of the Convention in the Committee on the Application of Standards of the Conference in June 2018, and its conclusions encouraging the Government to: continue to pursue further legislative action envisaged in the context of the constitutional reform in continued consultation with the social partners at the national level; ensure, in consultation with the social partners, that the secondary legislation required to enact the reforms to the Constitution and Federal Labour Act are in conformity with the Convention; continue to fulfil its existing legal obligation to publish the registration and statutes of trade unions, as well as existing collective agreements; and ensure that trade unions are able to exercise their right to freedom of association in law and practice.

Trade union rights and civil liberties. With reference to the allegations of various deaths and many persons injured and detained in the context of a dispute in the education sector in Oaxaca, the Committee notes the Government’s indication that, according to the reports that the Senate of the Republic and the National Human Rights Commission published on these events, it has not been established that the cause of the events was the existence of a strike or a labour dispute or that the victims were members of a union. The Government indicates that, in relation to the other alleged acts of violence referred to in the observations of the ITUC and IndustriALL of 2015 and 2016, it is continuing to await the additional information that the organizations can provide so that it can proceed with the investigation. The Committee also notes that, in their latest observations, the ITUC and the UNT allege 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, another murder (referred to the Committee on Freedom of Association in the context of Case No. 2694), and the death of a trade union activist in January 2018 after receiving threats relating to the promotion of a new union (the identity of the person who died is not specified in this case). The Committee requests the Government to provide its comments in this regard and invites the organizations concerned to provide the Government with any additional information that they have.

Article 2 of the Convention. Conciliation and arbitration boards. Constitutional reform of the labour justice system. With reference to its previous comments, relating to the observations of workers’ organizations alleging that the operation of conciliation and arbitration boards impedes the exercise of freedom of association, the Committee previously noted with satisfaction the adoption and entry into force in February 2017 of the reform of the Political Constitution of Mexico, as part of the process to reform the labour justice system, introducing, as the main changes: that labour justice is vested with federal or local bodies of the judicial authorities (to which the functions of the boards in this respect would be transferred); that conciliation procedures (a stage that in general precedes referral to the labour courts) are more flexible and effective (with the establishment of specialized and impartial conciliation centres in each federative entity); and that the federal conciliation body is a decentralized agency with responsibility for the registration of all collective labour agreements and trade unions. The Government indicates that four initiatives have been submitted for the adoption of regulations to give effect to the constitutional reform: the Senate adopted a decision in April 2018 approving the holding of public hearings, and on 29 August 2018 a new legislature was established in the Congress of the Union, which is expected to take over and hold the hearings. It adds that nine federative authorities have now amended their constitutions to bring them into harmony with the provisions of the Federal Constitution and that, in relation to the creation of the public decentralized body for the conciliation of disputes within the federal jurisdiction and the national register of trade unions and collective labour agreements, the Secretariat for Labour and Social Welfare (STPS) has prepared administrative, organizational, technological and logistical measures for its implementation and the transfer of the files. With regard to the creation of labour courts, the judicial authorities of the Federation established in May 2018 a Reform Implementation Unit and, at the local level, the National Commission for Higher and Supreme Courts of Justice decided in May 2017 to establish a Labour Commission to follow up the implementation of the reform. The Committee further notes that the ITUC, IndustriALL and the UNT express concern in relation to the formulation of the secondary legislation for the implementation of the reform, and denounce both the delay in its adoption (the time limit was 24 February 2018), the failure to hold the consultations announced by the Government in the Committee on the Application of Standards (the UNT alleges the refusal to enter into dialogue with the democratic unions) and the attempt by senators from the corporatist trade union movement to adopt a legislative initiative with the aim of undermining the constitutional reform and perpetuating the system of protection contracts and false tripartism. The ITUC emphasizes its concerns in relation to the draft legislation referred to above: (i) it would not overcome the problems of political bias and corruption that currently affect the conciliation and arbitration boards in view of the proposal that the new decentralized body (the Federal Labour Conciliation and Registration Institute) would report to a tripartite council, which would be controlled by the organizations responsible for the protection contracts, as the STPS has indicated that the independent labour tribunals would not begin to operate until the boards have resolved all the pending cases, which number thousands and could take years); (ii) the recount procedure to challenge the validity of a collective agreement contained in the draft legislation envisages a complex administrative procedure which in practice would prevent the replacement of non-representative unions; (iii) the draft legislation envisages the weakening of the transparency measures envisaged to make public the data on unions and the collective agreements in force; and (iv) the requirement for secret ballots to be held by workers for the adoption of collective agreements is undermined by the vague provision that organizations that claim to represent workers have to demonstrate that they have their support, without determining criteria or envisaging inspections, and conferring broad discretionary power on the Institute to decide whether there is proof in this regard. The Committee also notes that the CONCAMIN and the COPARMEX both emphasize the importance of continuing to hold consultations on the legislation for the implementation of the constitutional reform. While noting all these concerns expressed by the social partners as well as the information provided by the Government on the implementation of the reform, the Committee once again encourages the Government to submit to a broad process of tripartite consultation the legislative texts envisaged to give effect to the constitutional reform. Reiterating that ILO technical assistance continues to be available, the Committee requests the Government to provide information on any developments in this respect.

Trade union representativity. Trade unions and protection contracts. In its previous observation, the Committee once again requested the Government, in consultation with the social partners, to continue adopting the necessary legislative and practical measures to find solutions to the problems arising in relation to the issue of protection unions and protection contracts. The Committee recalls that for many years various national and international workers’ organizations have been reporting to the ILO supervisory bodies the violation of the right to organize through protection contracts, in which they allege that non representative trade unions, in connivance with the authorities, conclude, behind the backs of the workers, collective contracts with employers, in exchange for money and favours to be able to exercise discretion in the management of labour relations, and that the contracts reduce wages and prevent the establishment of independent unions by making it extremely difficult for them to be established once a protection contract has been registered. In this regard, the Government recapitulates the various legislative and practical measures that it has been taking with a view to finding solutions to the problems that arise in this respect, with emphasis on the following: (i) the 2012 reform of the Federal Labour Act (LFT), including the requirement for the STPS to make available to the public the content of the registered statutes, officers and records of decisions of trade unions; (ii) the system of consultation of groups of unions, the web page containing the registration of 3,371 trade unions (existing at the end of 2017) and the current records of decisions; (iii) the possibility to consult through electronic means the collective contracts, internal work rules and current agreements deposited with the Federal Conciliation and Arbitration Board (JFCA), (iv) the 2017 constitutional reform, referred to above, which includes the objective of establishing precise rules for the flexible resolution of disputes respecting the representative status of unions and limiting abuses in relation to the signatures on collective agreements (with the Government emphasizing that in recent years in cases of disputes relating to the application of agreements, 43 per cent of the trade unions with representative rights lost the recount procedure, reflecting the freedom of workers to exercise their trade union rights, and that in cases in which violations have been alleged, the Government has always conducted the respective investigations and provided the relevant information to the ILO); (v) the adoption of a labour inspection protocol on the freedom to conclude collective contracts (which requires employers to produce various documents during an inspection, including proof that the workers were informed of the collective contract, under the terms of which, between 2016 and September 2018, a total of 217 inspections were carried out, with the identification of 528 potential violations and benefiting 71,687 workers); and (vi) the ratification of Convention No. 98. The Committee further notes that the ITUC, IndustriALL and the UNT allege that, despite the measures adopted, the practice of protection unions and contracts persists in the country, and that they are even registered before enterprises start operating. IndustriALL refers to examples of violations of the Convention brought before the CFA in Case No. 2694 and emphasizes the importance of the provision of ILO technical assistance. The ITUC and the UNT also denounce irregularities in the treatment of applications for representative status to conclude collective contracts. Finally, the Committee notes that the CONCAMIN and the COPARMEX emphasize the importance of ensuring the real representative status of trade unions. Noting with deep concern the various assertions made, the Committee encourages the Government to submit the issues raised to broad discussion with the social partners concerned and urges the Government to take any additional legislative and practical measures that are necessary to resolve the problems raised by the issue of protection unions and contracts in relation to the exercise of the rights and guarantees set out in the Convention. Reiterating the continued availability of ILO technical assistance and hoping that the implementation of the constitutional reform and the adoption of the secondary legislation will provide an opportunity to continue making progress in addressing these problems, the Committee requests the Government to provide detailed information on any developments in this respect.

Publication of the registration of trade unions. The Committee notes that the Committee on the Application of Standards, in June 2018, requested the Government to continue to fulfil its existing legal obligation to publish the registration and statutes of trade unions, as well as existing collective agreements. The Committee notes that the Government reiterates the information that it provided to the Committee on the Application of Standards that: (i) by 30 April 2018, information on 3,422 trade union organizations (unions, federations and confederations) registered with the federal authorities had been published through the “trade union consultation system”, and that to date the system has recorded 254,512 consultations and the JFCA regularly enters and publishes all collective contracts; (ii) with regard to registers at the local level, the conciliation and arbitration boards are meeting their obligations in terms of transparency through the various mechanisms provided for in section 124(V) of the General Act on Transparency and Access to Public Information; and (iii) these obligations will be transferred to the decentralized public body following the adoption and entry into force of secondary legislation. The Committee also notes that: (i) the UNT alleges that the great majority of federative authorities do not publish on their Internet pages the collective labour contracts that are registered day by day; and (ii) the ITUC expresses concern with regard to the main draft secondary legislation for the implementation of the constitutional reform, which it considers could weaken the transparency measures envisaged for the publication of data on trade unions and collective agreements. The Committee requests the Government to continue providing information on the legal requirement for the conciliation and arbitration boards to publish trade union registrations and statutes, and on the impact of the implementation of the new constitutional reform and its secondary legislation on the procedure of trade union registration, including the publication of trade union registrations and statutes.

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 many years it has been asking the Government to take measures to amend 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 on trade unionists from leaving the union of which they have become members (section 69 of the LFTSE); (iii) the prohibition on 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 123B(XIIIbis) of the Constitution); and (vi) the prohibition on the re-election of trade union officers (section 75 of the LFTSE). The Committee notes the Government’s reiterated indication 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, and emphasizes 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 them obtaining registration (it refers, by way of illustration, to the case of the Secretariat of Communications and Transport of the Federal Executive Authority, for which eight unions are registered). The Government indicates that the members of the Chamber of Deputies have submitted various initiatives for the amendment of the provisions in question, provides detailed information on ten initiatives which were not approved by the legislative body and refers to a recent initiative of 26 July 2017 which proposes the amendment of most of the provisions referred to above (sections 68, 69, 71–73, 79 and 84), which is awaiting a decision. The Committee also notes that the UNT recalls the LFTSE was adopted in 1963, when the Committee immediately pointed out that was not in conformity with the Convention, and the UNT alleges that the Government’s assertion that the provisions in question are not applicable is a very partial description of the actual situation, as the rulings of the Supreme Court did not imply the repeal of the provisions, resulting in the need for workers who require the application of the criteria set out by the Supreme Court to engage in very lengthy procedures. Recalling the need to ensure the conformity of the legislative provisions with the Convention, even when they are in abeyance or are no longer applied in practice, the Committee once again requests the Government to take the necessary measures to amend the restrictive provisions referred to above in order to bring them into conformity with national case law and the Convention, and to provide information on any developments in this regard.

Article 3. Right to elect trade union representatives in full freedom. Prohibition on foreign nationals becoming members of trade union executive bodies (section 372(II) of the LFT). In its previous comments, the Committee noted the Government’s indications that: (i) section 372(II) of the LFT, 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 all 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. 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(II) of the LFT 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.