Report in which the committee requests to be kept informed of development - Report No 328, June 2002

Case No 2136 (Mexico) - Complaint date: 14-JUN-01 - Closed

Allegations: Denial of collective bargaining rights and anti-union dismissals

1. 491. The Trade Union Association of Airline Pilots of Mexico presented the complaint in communications dated 14 and 26 June 2001.
2. 492. The Government sent its observations in communications dated 19 October 2001 and 6 March 2002.
3. 493. 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. 494. In its communications dated 14 and 26 June 2001, the Trade Union Association of Airline Pilots of Mexico (ASPA) states that it is an occupational trade union for airline pilots which complies with the requirements of Mexican legislation and is registered with the State Office for the Registration of Associations at the Ministry of Labour and Social Security. Under its charter, membership is open only to those working as airline pilots and its legal representative is its secretary-general.
2. 495. It adds that the Consorcio Aviaxsa, S.A. de C.V. (AVIACSA) company and the Trade Union of Workers in Aeronautics, Similar and Related Industries of the Mexican Republic (STIAS) have concluded a collective labour agreement, which has been endorsed by the Federal Council for Conciliation and Arbitration. Initially, the collective agreement in question was divided into occupations and covered only the cabin crew and ground crew unions, excluding pilots. Subsequently, however, the pilots were incorporated into the collective agreement, without ever being consulted about it. Clearly, this collective agreement does not represent the will of the AVIACSA workforce, and nor have the pilots asked to be incorporated in it or affiliated to STIAS. The incident demonstrates a complicity between the Mexican labour authorities and the enterprises and employer-controlled trade union: although this was an occupational agreement that did not originally include pilots, the pilots’ union was subsequently incorporated without being consulted. This is contrary to the statement by the labour authorities that if an agreement is divided into occupations from the beginning then it cannot be made to cover further occupations.
3. 496. The complainant adds that, on 20 March 2000, ASPA submitted to the Federal Council for Conciliation and Arbitration an application to conclude a collective labour agreement exclusively for the pilots of the Consorcio Aviaxsa, S.A. de C.V. company, which is being processed as No. IV-67/2000. At the hearing, ASPA confirmed its request and evidence, indicating the issues that needed to be addressed and stating the justification for a ballot to be held among the pilots alone, pointing to similar cases, such as those of AEROCANCUN, SARO and AEROMEXPRESS. The respondents, for their part, contested the application and produced their own evidence; they argued that the ballot should include all of the company’s workers. They also stated that ASPA did not have the authority to take over from an industrial trade union the collective agreement for an occupational group when the collective labour agreement was indivisible. ASPA’s application was accompanied by another, submitted by a different trade union and processed as No. IV-99/2000. On 17 August 2000, the Federal Council for Conciliation and Arbitration issued a ruling that the trial ballot should be held on 22 August 2000 and cover the entire AVIACSA workforce, including pilots, cabin crew, mechanics and other ground crew and rejecting ASPA’s proposal for an occupational ballot for pilots only. Given the illegal nature of such a company-wide ballot and the impossibility of winning (even if the majority of pilots voted for ASPA it would lose the case because it would not have the overall majority of votes, and if the majority of the company’s workforce voted for ASPA it would also lose, because it only covers pilots and cannot offer membership to other categories). ASPA decided not to support the ballot and instructed pilots not to vote, or, if they did, to give their vote to another union in order to avoid being dismissed unjustly.
4. 497. It adds that, following ASPA’s decision to apply for a collective agreement for pilots at AVIACSA, a number of pilots had been unfairly dismissed purely because they supported ASPA, including Captain Emilio Alberto Zárate González, Captain Andrés Flores López, Captain Gerardo Gorría Carmona, Captain Ismael Cruz Román, Captain Marcos Guillermo Mendoza Escobar, Captain Luis Fernando del Río Leal, Captain Manuel Tostado Almazán, Captain José Eduardo Rodríguez Normandía, Captain Gerardo Serrato Sala, Captain Jorge Eduardo Moreno Aguirre, Captain Ari Rafael Rose Errejón and Captain Mario Rafael Escalera Cárdenas. As a consequence of the unfair dismissals, individual appeals against dismissal were lodged and are being processed by Special Council No. 2 of the Federal Council for Conciliation and Arbitration under case numbers 332/2000, 333/2000, 334/2000, 336/2000 and 350/2000.
5. 498. The complainant states that, on 16 October 2000, the Federal Council for Conciliation and Arbitration absolved the respondents of ASPA’s demand to be allowed to conclude a collective agreement, ruling that it was not appropriate for the pilots of AVIACSA to have their own collective agreement. ASPA disagreed and launched an appeal, which was upheld by the Sixth Collegiate Tribunal on Labour of the First Circuit in document DT 2566/2001. In granting the appeal and the protection of federal justice on 17 May 2001, it ordered the Federal Council for Conciliation and Arbitration not to execute the ruling of 16 October 2000 and to disregard the results of the ballot held on 22 August 2000. It ruled that a new ballot should be held because of the illegality of the ballot for the entire AVIACSA workforce. Article 388 of the Federal Labour Law provides that, in the conclusion of collective labour agreements within a company, there may be both an industrial and an occupational trade union involved and that a collective agreement should be signed with the occupational trade union for its members and with the other trade union for the remaining categories of workers. Article 389, for its part, stipulates that the loss of the majority referred to in article 388 entails the loss of the collective labour agreement. The provisions of article 388 read as follows:
   • Article 388. ... III. If occupational and enterprise or industrial trade unions are competing, the occupational trade unions shall be allowed to conclude a collective agreement for their occupational group, as long as the number of their members is greater than that of workers in the same occupational group holding membership of the enterprise or industrial trade union.
6. 499. Article 389 provides that:
   • The loss of the majority referred to by the previous article, as declared by the Council for Conciliation and Arbitration, entails the loss of the collective labour agreement.
   • The Federal Council for Conciliation and Arbitration applied the principles contained in articles 388 and 389 of the Federal Labour Law and it was hence taken that, where conflicts over the right to sign the collective agreement arose because an occupational trade union wished to take over from an industrial union the professional representation of a given category, it was appropriate to take action. In recognition of the greater professional interest of the occupational trade union, it was decided to hold an occupational ballot in which only the members of the disputed category would participate. That rule had been applied by the Federal Council for Conciliation and Arbitration in all such conflicts over the right to sign in the airline industry, where, because of the industry’s special nature, workers were organized in occupational unions on the basis of a natural division of activities.
7. 500. The complainant states that the Federal Council for Conciliation and Arbitration suddenly amended its rules for the airline industry. In order to protect the unions favoured by the employers and the employers themselves, and since the current collective agreements were of a company-wide nature, it adopted a new rule, namely that the right to sign a collective agreement could not be claimed on behalf of a specific occupational group, but only on behalf of all categories covered under the agreement, which left the occupational trade unions without any rights at all. However, this rule, put forward by the Federal Council for Conciliation and Arbitration, was declared illegal by the High Court of Justice, which ruled that it was appropriate for an occupational trade union to claim from an industrial trade union the right to sign the collective agreement on behalf of a specific occupational group and that the trial ballot should be held only among the workers in that category.
8. 501. Despite the fact that ASPA’s appeal was upheld and it was deemed illegal to hold a company-wide ballot on a conflict over the right to sign on behalf of only one occupational group, on 30 May 2001 the Federal Council for Conciliation and Arbitration once again ordered a general ballot, to be held on 18 June 2001, dismissing ASPA’s representations to the effect that an occupational ballot should be held for pilots only.
9. 502. In every country, airline-industry workers are organized into occupational trade unions corresponding to the different occupational groups, namely ground crew, cabin crew and pilots. This is the general rule because each of these occupations has its own features, on the basis of which its workers have sought to organize their own unions, and the respective unions are affiliated to international federations for each of the relevant occupations. In the case of pilots, both in the Americas and in Asia, Europe, Africa and the Pacific Rim, there are occupational unions, which in turn belong to supra-national organizations of a regional or global nature, such as the OIP or IFALPA.

B. The Government’s reply

1. 503. In its communications dated 19 October 2001 and 6 March 2002, the Government states that, according to the Trade Union Association of Airline Pilots of Mexico (ASPA), the alleged violation took place during the legal case over the right to sign the collective agreement, brought against Consorcio Aviaxsa, S.A. de C.V. (AVIACSA) and the Trade Union of Workers in Aeronautics, Similar and Related Industries of the Mexican Republic (STIAS).
2. 504. It adds that the events related by ASPA took place during the legal dispute over the right to sign a collective agreement, and, as such, fall under the provisions governing collective bargaining rights contained in the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), which has not been ratified by Mexico.
3. 505. In connection with the dispute, the Government states that on 18 March 1992 AVIACSA concluded a collective labour agreement with STIAS in order to regulate worker-employer relations, which, according to the agreement, should be conducted through a trade union. The clauses of the contract were applicable to all AVIACSA workers. The only distinction drawn among workers was the basic salary payable to each category. The latest version of the salary scale contained 38 different post types.
4. 506. The Government adds that, on 29 March 1995, an agreement was concluded on the revision of the salaries contained in the collective labour agreement between AVIACSA and STIAS. This established the categories of ground crew and air crew and laid down different working conditions for each category. The only reference to grades of workers is in the scale of minimum salaries payable according to post, which includes different types of pilots.
5. 507. The collective labour agreement between AVIACSA and STIAS and the salary revision agreement were not divided into occupations. The salary revision agreement drew a distinction between ground crew and air crew in order to be able to provide benefits over and above those required by law in accordance with the special conditions of service, such as the provision of food vouchers, payment of meal expenses, family discounts and annual passes providing discounts or free flights. Workers belonging to ASPA enjoy the same rights as members of STIAS, even though they are not part of the latter union, which holds the signing rights for the collective labour agreement (article 396 of the Federal Labour Law).
6. 508. The Government states that ASPA applied to AVIACSA and STIAS for the right to sign the collective labour agreement on behalf of pilots on 20 March 2000. The case was turned over to Special Council No. 2 of the Federal Council for Conciliation and Arbitration under case No. IV-67/2000. The application by the Trade Union of Labourers and Employees in Transport, Communications and Similar Industries of the Mexican Republic was later added, since it sought the right to sign the same collective labour agreement.
7. 509. The Council ordered a trial ballot among the entire AVIACSA workforce. It was held on 17 August 2000. ASPA received no votes.
8. 510. It is emphasized that 738 workers voted, including 76 pilots of the total of 97 pilots actively working for AVIACSA.
9. 511. The collective labour agreement concluded with STIAS covers all labour issues affecting the AVIACSA workforce. While article 338, Section III of the Federal Labour Law provides for the hypothetical occurrence of competition between occupational and enterprise or industrial trade unions, the hypothesis is not applicable where there is an existing agreement covering all labour relations.
10. 512. The Council pronounced final judgement on 16 October 2000 to the effect that ASPA’s case was dismissed and the defence of AVIACSA and STIAS was upheld. The respondents were absolved of all of the claims by ASPA and the Trade Union of Labourers and Employees in Transport, Communications and Similar Industries of the Mexican Republic. ASPA applied for leave to appeal against the final judgement to the Sixth Collegiate Tribunal on Labour of the First Circuit and was granted leave to appeal in order first to resolve the dispute surrounding the trial ballots proposed by the parties before such a ballot be conducted. The dispute centres around the fact that AVIACSA and STIAS propose to ballot the entire AVIACSA workforce, while ASPA would ballot only the pilots. The Council fulfilled the appeal judgement through an agreement dated 30 May 2001 in which it settled the dispute surrounding the ballot. After analysing the evidence put forward by the parties, the Council decided that, since a collective labour agreement was already registered with an industrial trade union and covered all the company’s workforce, that existing collective agreement regulated all labour relations in the relevant company under the terms of article 396 of the Federal Labour Law. The Council also considers that, while article 388, section III of the Federal Labour Law provides for the hypothetical occurrence of competition between occupational and enterprise or industrial trade unions in the conclusion of a collective labour agreement, where, as in this case, there is an existing agreement covering all labour relations, it is essential to ballot all workers and not only the members of the pilots’ trade union. Failure to follow this procedure would be a violation of the rights not only of the members of STIAS, which concluded the collective labour agreement, but of those of every worker in the service of AVIACSA. The Council also noted that the ballot was undoubtedly the ideal test of which organization should be accredited to conclude and administer the collective labour agreement, for which the successful union would need to demonstrate that it had the majority support both of the trade union members and of the remaining workers at the company.
11. 513. The Council announced a new date, 18 June 2001, for the balloting of all workers. ASPA did not obtain any votes in the ballot. STIAS obtained 740 votes and the Trade Union of Labourers and Employees in Transport, Communications and Similar Industries of the Mexican Republic obtained one vote.
12. 514. As regards the five claims of unfair dismissal, the Government states that they were submitted to the labour authorities by Emilio Zárate González, Ari Rafael Rose Errejón, Mario Rafael Escalera Cárdenas, Marcos Guillermo Mendoza Escobar and Gerardo Serrato Sala and are still being examined by the Federal Council for Conciliation and Arbitration, and therefore it has not yet been established whether they were dismissed unjustly or whether the reason was their trade union activities.
13. 515. As regards ASPA’s claim that the High Court of Justice declared illegal the rule set by the Federal Council for Conciliation and Arbitration, namely that the right to sign a collective agreement could not be claimed on behalf of a specific occupational group, but only on behalf of all categories covered under the agreement, the Government states that the collegiate tribunals of the labour circuit that deal with appeals against final rulings by the Federal Council for Conciliation and Arbitration are not qualified to "declare illegal the rules" of the Council. Their competence extends to upholding or rejecting the complainant’s appeal against specific acts of authority that are perceived to violate his individual constitutional rights. The rulings of appeal cases refer only to the individuals that brought the case and are limited to providing them with recourse and protection, if appropriate, in the specific circumstances that motivated the appeal, without making a general declaration concerning the law or act that gave rise to it (article 76 of the Law on Recourse, regulating articles 103 and 107 of the Constitution of the United Mexican States). Contrary to ASPA’s claim, the Federal Council for Conciliation and Arbitration upheld the rule that all the workers at the company and to whom the collective labour agreement applied should be balloted. It is not sufficient for the union to gain the majority of votes from a single occupational group; it must take into account the votes of all workers covered by the collective labour agreement. The Federal Council for Conciliation and Arbitration has applied this rule in the airline industry and to all similar cases brought by occupational trade unions to obtain the right to sign collective labour agreements.
14. 516. The Government emphasizes that there is no legal substance to the arguments that: (a) the collective agreement is breaking up of its own accord because each of the occupations to which it applies is governed by its own specific standards; (b) a collective agreement should be considered for each individual occupation; and (c) the AVIACSA collective agreement should be divided into three sections for the different occupations that it covers, each with its own field of application. As regards the argument that the AVIACSA pilots are not covered by the general provisions of the Federal Labour Law and enjoy special working conditions because they are governed by standards applicable exclusively to their profession, the Federal Labour Law establishes the working conditions for all workers, including pilots, and its Chapter IV lays down special provisions for the "work of air crew". Pilots are governed by the provisions of Chapter IV and the general provisions of the Federal Labour Law.
15. 517. Finally, the Government states that, during the legal dispute over the right to sign the AVIACSA collective labour agreement, ASPA has been able to exercise its rights under the law and have recourse to remedies against the resolutions by which it considered itself affected. The issue that has been brought before the ILO is still sub judice before the national judicial bodies and this could affect the process before the Mexican courts pronounce. Moreover, if the federal legal authorities uphold ASPA’s case, this communication will be groundless.
16. 518. To conclude, the Government has acted in accordance with the principles of freedom of association and collective bargaining established by the Committee of Experts on the Application of Conventions and Recommendations and the Committee on Freedom of Association of the ILO in the sphere of exclusive bargaining rights:
    • - There is an objective and previously established criterion, the balloting procedure contained in article 931 of the Federal Labour Law, to determine the right to sign the collective labour agreement.
    • - Special Council No. 2, respecting the principle of "the most representative organization" contained in article 3, paragraph 5, of the ILO Constitution, ordered a ballot among the entire AVIACSA workforce to determine which trade union had the right to sign the collective labour agreement.
    • - The balloting procedure was carried out before Special Council No. 2, which is an independent body, with tripartite membership.
    • - ASPA freely exercised its right to seek the right to sign the collective labour agreement.
    • - STIAS obtained the majority of the votes in the two ballots: 729 votes in the first and 740 in the second. The Trade Union of Labourers and Employees in Transport, Communications and Similar Industries of the Mexican Republic obtained one vote each time and the Trade Union Association of Airline Pilots of Mexico (ASPA) received no votes. Hence, the most representative trade union was selected on the basis of the vote of the majority of the workers in the unit concerned.
    • - The pilots can participate in collective bargaining relating to their conditions of work through the union that holds the right to sign the collective labour agreement.

C. The Committee’s conclusions

1. 519. The Committee notes that in this case the Trade Union Association of Airline Pilots of Mexico (ASPA) alleges that the Consorcio Aviaxsa, S.A. de C.V. (AVIACSA) company has failed to recognize its collective bargaining rights as a trade union organization exclusively representing pilots by signing a collective agreement with the Trade Union of Workers in Aeronautics, Similar and Related Industries of the Mexican Republic (STIAS), which is applied to all the company’s workers.
2. 520. The Committee takes note that, according to ASPA, on 20 March 2000 the complainant organization submitted to the Federal Council for Conciliation and Arbitration an application to conclude a collective labour agreement exclusively for the pilots of the Consorcio Aviaxsa, S.A. de C.V. company, in accordance with the provisions of article 388 of the Federal Labour Law, according to which, if occupational and enterprise or industrial trade unions are competing, the occupational trade unions shall be allowed to conclude a collective agreement for their occupational group, as long as the number of their members is greater than that of workers in the same occupational group holding membership of the enterprise or industrial trade union. According to the complainant organization, a group of pilots was dismissed unjustly as soon as the application was made. The Committee notes that a ballot was held on 22 August 2000, but was open to all of the AVIACSA workforce. As a result, ASPA decided not to support it. Since the majority was won by STIAS, the Federal Council for Conciliation and Arbitration rejected on 16 October 2000 the application for the right to sign the collective agreement submitted by ASPA. The latter submitted an appeal, which was upheld on 17 May 2001. The Collegiate Tribunal on Labour of the First Circuit ordered the Federal Council for Conciliation and Arbitration not to execute the ruling of 16 October 2000 and to hold a new ballot. However, the new ballot held on 30 May 2001 again included the entire workforce, despite ASPA’s request to the contrary.
3. 521. The Committee also notes that, according to the Government, the events alleged by ASPA took place during the legal dispute over the right to sign a collective agreement, and, as such, fall under the provisions governing the right to collective bargaining contained in the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), which has not been ratified by Mexico. The Government states that the AVIACSA company concluded a collective agreement with STIAS in March 1992, which was applicable to all AVIACSA workers. The only distinction drawn among workers was the basic salary payable to each category. The agreement was revised in 1995, when different working conditions were established for each category of workers, though they were not at any time divided into occupational groups.
4. 522. The Committee takes note of the Government’s statement that the Federal Council for Conciliation and Arbitration upheld the rule that the ballot should include all those who work in the company and are covered by the collective agreement. According to the Council, it is not sufficient for the union to gain the majority of votes from a single occupational group; it must take into account the votes of all workers covered by the collective labour agreement. Hence, when ASPA applied for the right to sign the collective agreement, there were two company-wide ballots, in which STIAS won the majority, not only of workers overall, but also of the company’s pilots: it obtained 729 votes in the first ballot and 740 votes in the second; the Trade Union of Labourers and Employees in Transport, Communications and Similar Industries of the Mexican Republic obtained one vote in both ballots and the Trade Union Association of Airline Pilots of Mexico (ASPA) received no votes.
5. 523. The Government also states that, according to case law, article 388 of the Federal Labour Law on the hypothetical occurrence of competition between occupational and enterprise or industrial trade unions is not applicable in the present case where there is an existing agreement covering all labour relations, and that, in the event of a dispute between two trade unions, the ballot should be open to all the company’s workers since its outcome may affect them all.
6. 524. The Committee observes that, in order to be able to bargain collectively on behalf of the pilots, who are not represented by the enterprise trade union, ASPA (which refers to different legal precedents than those put forward by the Government) asked for the pilots alone to be balloted, but the Federal Council for Conciliation and Arbitration ruled that the ballot should include all the company’s workers and for this reason the pilots who were members of ASPA decided not to participate. The Committee observes that the Council rejected ASPA’s claim to the right to sign the collective agreement because the latter, by not participating in the vote, was not seen to enjoy greater representativity and because there was already a signed collective agreement in force between the company and STIAS, which covered all workers.
7. 525. On previous occasions the Committee has indicated the following principles relating to exclusive bargaining rights: "where, under the system in force, the most representative union enjoys preferential or exclusive bargaining rights, decisions concerning the most representative organization should be made by virtue of objective and pre-established criteria so as to avoid any opportunities for partiality or abuse" [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 827]. It is not necessarily incompatible with the Convention to provide for the certification of the most representative union in a given unit as the exclusive bargaining agent for that unit. This is the case, however, only if a number of safeguards are provided. The Committee has pointed out that in several countries in which the procedure of certifying unions as exclusive bargaining agents has been established, it has been regarded as essential that such safeguards should include the following: (a) certification to be made by an independent body; (b) the representative organizations to be chosen by a majority vote of the employees in the unit concerned; (c) the right of an organization which fails to secure a sufficiently large number of votes to ask for a new election after a stipulated period; (d) the right of an organization other than the certified organizations to demand a new election after a fixed period, often 12 months, has elapsed since the previous election [see Digest, op. cit., para. 834].
8. 526. The Committee concludes that as the Government has demonstrated that the most representative trade union at AVIACSA is STIAS (the holder of the collective agreement), it does not appear that the principles of collective bargaining have been violated by denying the complainant organization the right to negotiate a specific collective agreement for the pilots. The Committee notes that systems of collective bargaining with exclusive rights for the most representative trade union and those where it is possible for a number of collective agreements to be concluded by a number of trade unions within a company are both compatible with the principles of freedom of association. This is a matter to be decided on the basis of national legislation and practice.
9. 527. As regards the alleged dismissal of a group of workers because they supported ASPA’s application for the right to sign the collective agreement, the Committee notes that the Government reports that the cases of dismissal have been submitted to the judicial authority, which has not yet issued a ruling. The Committee requests the Government to keep it informed of the rulings issued. If it transpires that the dismissal of these workers was due to legitimate trade union activity, the Committee requests the Government to ensure that the workers concerned are reinstated in their posts, without loss of pay.
10. 528. As regards the Government’s declaration that the issue that has been brought before the ILO is still sub judice before the national judicial bodies and this could affect the process before the Mexican courts pronounce, the Committee recalls that it is not essential for domestic remedies to be exhausted before complaints are presented to it and that it may make recommendations even where the national judicial bodies have not yet pronounced on the complainant’s case.

The Committee's recommendations

1. 529. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • As regards the cases brought by a group of workers allegedly dismissed because they supported ASPA’s application for the right to sign the collective agreement, the Committee requests the Government to keep it informed of the rulings issued. If it transpires that the dismissal of these workers was due to legitimate trade union activity, the Committee requests the Government to ensure that the workers concerned are reinstated in their posts, without loss of pay.