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Definitive Report - Report No 342, June 2006

Case No 2442 (Mexico) - Complaint date: 27-JUN-05 - Closed

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Allegations: The complainant trade union alleges violation by the Mexican Social Security Institute (IMSS) of the provisions of the collective agreement relating to recruitment and replacements for vacant posts and the bilateral procedure for covering such posts, and also that with the suspension of cover of vacant posts following the Presidential Decree of 11 August 2004, it sought to reduce the retirement and pension scheme of the Mexican Social Security Institute

772. The complaint is set out in a communication from the National Union of Social Security Workers (SNTSS) of 20 June 2005. The Government sent its observations in a communication of 24 January 2006.

  1. 773. 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

A. The complainant’s allegations
  1. 774. In its communication of 20 June 2005, the National Union of Social Security Workers (SNTSS) alleges that the Mexican Social Security Institute (IMSS) has been violating the Constitution, legislation, the current collective agreement and Convention No. 87 since the issue by the President of the Republic on 11 August 2004 of a decree which amends certain provisions of the Social Security Act and contains certain contradictory provisions.
  2. 775. The 2003 collective agreement provides as follows:
  3. Clause 22 – Titular rights in this contract and exclusive rights to basic posts
  4. The Institute recognizes that the National Union of Social Security Workers has titular rights in this contract and exclusive rights to basic posts, of which the full list of categories is set out in the appended Salaries Table, together with the posts in each category which are increased or modified by agreement between the parties.
  5. Membership of the National Union of Social Security Workers is an essential requirement to work in the service of the Mexican Social Security Institute.
  6. Under the terms of this contract, the Institute shall request and the Trade Union shall provide the personnel required, subject where applicable to the provisions of clause 23.
  7. Clause 22Bis – Cover and review of personnel establishments
  8. The Institute shall, in a timely manner, cover temporary or permanent vacancies with basic workers or replacements in accordance with the current employment roster and promotion regulations.
  9. The Institute and the Trade Union shall form the National Joint Committee for review of personnel establishments, and joint subcommittees whose functions shall be to ensure permanent cover of authorized establishments, ascertain the reasons for absenteeism and recommend measures to reduce it, identify areas or services with an excessive workload or the need for restructuring, in order, where appropriate, to request the National Committee to review the establishment concerned.
  10. Clause 23 – Filling of vacant posts in autonomous categories or at the lowest grade and admission of workers
  11. Basic workers who request a change of shift and/or assignment, extension of working time, change of address and change of branch, and also workers recruited for a specific task or as replacements and new entrants shall, without exception, come from the employment rosters.
  12. First preference in filling vacancies shall be given to basic workers, and after that, new entrants, depending on the characteristics of the post and in accordance with the employment roster regulations.
  13. Basic workers who request a change of shift and/or assignment, extension of working time or change of address shall not be subject to conditions and shall fill vacant posts in the autonomous categories or at the lowest grades in accordance with the employment roster regulations. Basic workers who request a change of branch must satisfy the requirements of the category to which they aspire in accordance with the provisions of the employment roster regulations and obtain certified qualifications, filling vacant posts in the order of the qualifications obtained.
  14. If there is no candidate for the vacant post in the roster of basic workers, the roster of candidates for new recruitment shall be consulted and the best qualified candidate selected. Urgent replacements to cover posts which remain vacant for less than 30 days shall be freely selected from the replacements roster and for replacements of more than 30 days, the best qualified candidate shall be employed.
  15. The admission of applicants to the employment roster shall be effected on the basis of proposals submitted by the Trade Union for that purpose in respect of applicants who meet the requirements set out in the relevant job description, subject only to the limitation of the contracting requirements indicated by the Institute, in accordance with the numbers of vacant posts in the categories it is sought to cover.
  16. The Trade Union may review the files relating to the selection process for new candidates for admission and shall participate in the award of appointments. The process of selection of applicants for change of branch shall be governed by the procedures set out in the Regulations for the Selection of Human Resources for Change of Branch.
  17. In the case of new recruitment in the medical and paramedical fields, other things being equal, preference shall be given to health professionals and health technicians who have completed courses delivered by the Institute.
  18. 776. For its part, the Decree of the President of the Republic of 11 August 2004 establishes, inter alia, the following amendments to the Social Security Act:
  19. Article 277D. The Technical Council may only create, replace or recruit for posts subject to criteria of productivity, efficiency and service quality, as well as increased income, only provided that it has the approved resources in its respective budget for the said creation, replacement and recruitment of posts, and the resources essential to cover the annual cost of the implications of such. Notwithstanding the foregoing, to create, replace or recruit for posts, the resources necessary to cover the future costs under the Retirement and Pension Scheme must be deposited in the Fund to which Article 286K of this Act refers, such that at any time it is fully founded.
  20. Article 286K. The Institute shall, in accordance with the guidelines issued for the purpose by the Technical Committee, administer and manage a fund to be called the Fund for the Fulfilment of Employment Obligations of a Legal or Contractual Character, with the object of having the necessary resources at the time of its workers’ retirement. For this purpose, the Technical Committee shall approve the rules of the said fund based on proposals by the Director General, who must seek the prior opinion of the Secretariat of the Treasury and Public Borrowing. The management of the Fund must take into consideration the policies and guidelines applied by the Federal Public Administration in such matters.
  21. The said Fund must be recorded separately in the accounting system of the Institute, establishing within it a special account for the Institute Workers’ Retirement and Pension Scheme. The resources appropriated to the said Fund and special account may only be used for the purposes established in this article.
  22. The Institute, as employer, may not allocate resources derived from contributions paid by employers and workers under the Social Security Act to this Fund to finance the special account of the Retirement and Pension Scheme. Neither shall it designate resources for this purpose from contributions, allocations and appropriations paid by the Federal Government nor the reserves to which Article 280 of this Act refers or the financial products obtained from them.
  23. Transitional provisions
  24. One.- The present Decree shall enter into force on the day following its publication in the Official Journal of the Federation.
  25. Two.- Workers, retirees and pensioners of the Institute who have enjoyed any of these provisions up to the entry into force of the present Decree shall continue to enjoy the benefits granted by the Retirement and Pension Scheme under the same terms and conditions as they had enjoyed prior to the entry into force of the present Decree, without prejudice to such arrangements as may be agreed between the parties. For that purpose, the Institute shall contribute the corresponding amounts, contained in its budget, in accordance with Article 276 of the Social Security Act, charged to the contributions, allocations and appropriations which it is required to collect and receive under that Act.
  26. Three.- With the object of duly fulfilling the provisions of Article 277D of this Decree, the Institute shall undertake the appropriate actuarial studies and shall communicate them to the workers’ representatives. It shall also report the results of these studies to the Congress of the Union in the Report to which Article 273 of the Social Security Act refers.
  27. 777. The complainant trade union states that the workers’ retirement and pension scheme of the Mexican Social Security Institute is an integral part of the collective agreement which it signed with the IMSS, in Chapter XIV and article 110 of the agreement. The Institute has attempted to reduce this retirement and pension scheme, despite it being an inalienable acquired right of the complainant trade union and its members, in that the Institute suspended filling vacant posts. The mechanisms governing the replacements and recruitment for vacant posts are laid down in the collective agreement. The trade union’s titular rights in the collective agreement and the exclusive right to basic posts, the list of which is set out in the salary table, are set out in clauses 22, 22bis and 23. In addition, it is expressly stated that, where posts in each of the categories are increased or modified, this shall be by bilateral agreement between the parties, the Institute and the trade union, and that membership of the trade union is established as an essential requirement to fill vacant places and be recruited to work in the Institute. As regards covering both temporary and permanent vacant posts, and all replacements in general, it is established that these must be effected through a bilateral procedure with the involvement of the joint Institute and trade union bodies regulated by the collective agreement and various regulations, including the current employment roster and promotion regulations. As regards promotions, there are promotion procedures and promotion regulations which form part of the collective agreement itself.
  28. 778. The complainant trade union alleges that from 11 August 2004, the date on which the abovementioned Decree of the President of the Republic was published, the Mexican Social Security Institute (IMSS) ceased covering staff vacancies which arise on a day to day basis from trade union members despite its current contractual obligation. Up to 30 April 2005, the unfilled vacancies totalled 16,758. Of this total, doctors numbered 3,054 and nurses 3,307. The other unfilled vacancies concerned other categories. Thus, out of a total of 297,678 posts existing at 11 August 2004, 280,920 were occupied at the end of April 2005, reducing the number of existing posts, contrary to the increase in the number of IMSS claimants in the same period (report of the SNTSS based on data from the IMSS personnel development department).
  29. 779. Furthermore, in an IMSS letter dated 11 August 2004 addressed to all state, regional and federal district delegates, the general coordinator of the personnel and organization development department said that: “as a result of the amendments to the Social Security Act approved by the Legislative Power which will affect the retirement and pension scheme for workers recruited after the entry into force of the Decree which reforms articles 277D and 286K of the Social Security Act, you are informed that with effect from this date the selection procedures for new personnel in the basic categories are suspended, until the criteria and procedures governing the recruitment of personnel by the Institute are authorized”. This is what did indeed happen. Recruitment of personnel to vacancies that arose ceased, as did new personnel for newly created posts, thus breaching the obligation established in clauses 22, 22bis and 23 of the collective agreement, and despite the fact that the number of IMSS claimants or patients in the country has continued to increase.
  30. 780. On 6 June 2005, the Director of the IMSS, Mr. Santiago Levy Algazi, told the press that: “Recruitment of doctors was suspended in August 2004 because bargaining with the trade union on the new retirement and pension scheme has not been completed”, adding “The central obstacle is not of a legal nature but a contractual one. If we could quickly conclude the bargaining with the trade union, the Institute could start gradually to fill the posts in the medical area” (the newspaper Reforma of 6 June 2005). This admission by the Director of the IMSS confirms the unilateral measure by the IMSS and the lack of a legal and contractual basis to the measure, as well as confirming the failure to comply with the collective agreement to which we referred.
  31. 781. The reduction in posts is continuing in 2005, as a result of retirements, leave, holidays, incapacity through health and death of active personnel. The IMSS is not filling these posts, thus a further reduction in posts of 39,920 unfilled posts is expected for the rest of 2005. If the trend and the current monthly average continues until the end of 2005, a total of only 242,118 workers will be left in the IMSS. This means that violations of the collective agreement will continue causing serious and irreparable damage which must be prevented as a matter of urgency.
  32. 782. By failing to fill the posts left vacant since 11 August 2004, the IMSS also violates the legal obligation to recognize the function of trade union representation and fails to comply with clauses 22, 22bis and 23 of the collective agreement, the fundamental basis of the goal of freedom of association: to promote and defend the interests and rights of the workers represented by the SNTSS.
  33. 783. It should be clarified that the collective agreement has not been amended. It is in full legal force as is recognized by the IMSS representatives. The Director of the IMSS seeks “bargaining” with the trade union, with the intention that it should agree to renounce acquired rights in the collective agreement.
  34. B. The Government’s reply
  35. 784. In its communication of 24 January 2006, the Government states that the Committee on Freedom of Association examines communications on violations of the principle of freedom of association protected by ILO Convention No. 87. The principle consists of the right freely exercised by workers and employers, without distinction whatsoever, to organize to promote and defend their respective interests [see Summaries of International Labour Standards, revised second edition, 1990, p. 5]. In this respect, none of the facts mentioned in the communication presented by the SNTSS constitute, as alleged, failure by the Government of Mexico to observe the principle of freedom of association and the right to organize enshrined in the said Convention. In no comment does the SNTSS indicate that it has been prevented from freely exercising its right to establish itself, with legal personality and its own assets, to defend its members’ interests by such ways and means as it considers appropriate. Neither has it been prevented from exercising its right to draw up its statutes and regulations, freely elect its representatives, organize its administration and activities and formulate its programme of action. Neither does the trade union state that it has encountered obstacles in forming federations and confederations and affiliating to them. Consequently, at no time has the Government of Mexico failed to comply with the provisions of ILO Convention No. 87.
  36. 785. The attention of the Committee on Freedom of Association is drawn to the fact that the matters reported by the SNTSS refer to aspects relating to the right to organize and collective bargaining contemplated in Convention No. 98 and Mexico has not ratified that Convention.
  37. 786. In addition, the Government states that the obligation to recognize the principle of freedom of association is that of the member States in subject to the Constitution of the International Labour Organisation, which is reflected in the Handbook of Procedures relating to International Labour Conventions and Recommendations (paragraph 79). Thus, for the Committee on Freedom of Association to be able to consider a complaint, the alleged violation of the principle of freedom of association must derive from acts committed by the Government. The present complaint refers to the Mexican Social Security Institute (IMSS), which is a decentralized public body, but the acts alleged against it refer to aspects of the labour relations between the National Union of Social Security Workers (SNTSS) as a trade union organization and the IMSS as an employing body, and not its action as an authority.
  38. 787. Nevertheless, the Government continues, in order to contribute in good faith to the work of the Committee on Freedom of Association, the following comments on the allegations of the SNTSS are submitted.
  39. 788. As regards the allegation of the SNTSS according to which the IMSS is not complying with its obligation to fill vacant and new posts, stipulated in clauses 22, 22bis and 23 of the collective agreement, the Government indicates that the IMSS stated that it had not ceased filling personnel vacancies arising on a day-to-day basis. Personnel were recruited subject to the following premises:
  40. - on 16 June 2000, the “Agreement on renewal of the undertaking between the IMSS and the SNTSS to raise the quality of services” was signed. This agreement refers to the institutional agreement to fill the establishment to 95-98 per cent, depending on the type of department concerned and the pattern of nomination of posts, with 100 per cent coverage of programmed absences under approved establishments and 70 per cent cover of non-programmed absences, provided that the current rate did not increase;
  41. - on 21 August 2002, the IMSS and SNTSS deposited with the Federal Conciliation and Arbitration Board the agreement by which they formed the National Joint Human Resources Management Committee (CNMNRH) and its respective regulations, which has representatives of the IMSS and SNTSS;
  42. - Chapter 2 and article 3 of the regulations state that the CNMNRH has the following functions:
  43. - to apply post-position analysis (APP);
  44. - to organize the workforce of operational units to strengthen priority services and categories directly serving the claimant public;
  45. - to seek technical advice in the corresponding regulatory area in the event of discrepancies;
  46. - with the Human Resources Unit the incorporation of the Integrated Personnel Administration System (SIAP), to manage the personnel APP of the establishments, as appropriate;
  47. - to address central and local proposals concerning transformation, compensation and reorganization of posts, within the approved budget, establishment and structures.
  48. 789. Based on these elements, in the period January to October 2005, the basic post occupancy of the IMSS averaged 282,409 posts, from a budgetary framework agreed bilaterally between the CNMNRH with section general secretaries and heads of delegations of 286,271 posts, which gave 96.01 per cent coverage of the personnel establishment. The possibility of immediate filling of 3,862 vacant posts within the approved framework should be emphasized, in compliance with the employment roster and promotion regulations in the collective agreement.
  49. 790. The IMSS indicates that the coverage of personnel establishments was analysed in meetings of the CNMNRH, establishing coverage percentages above those laid down in the “Agreement on renewal of the undertaking between the IMSS and the SNTSS to raise the quality of services”. The trade union representatives accepted that 3.99 per cent, equivalent to 11,882 posts, should not be filled, against the background of the percentages agreed bilaterally in the CNMNRH, thus it can be concluded that the recruitment of personnel to basic vacancies is within that agreed between the IMSS and the SNTSS, as can be seen in the following table:
  50. Month / Base framework / Replacement framework / Total
  51. _________________________________________________________
  52. Approved framework / 286 271 / 20 969 / 307 240
  53. Occupancy / – / – / –
  54. January / 283 349 / 20 803 / 304 152
  55. February / 282 942 / 19 391 / 302 333 /
  56. March / 282 942 / 20 391 / 302 816
  57. April / 282 514 / 23 052 / 305 566
  58. May / 282 245 / 21 312 / 303 557
  59. June / 282 322 / 21 496 / 303 818
  60. July / 282 100 / 18 718 / 300 818
  61. August / 281 883 / 20 186 / 302 069
  62. September / 282 006 / 20 734 / 302 740
  63. October / 282 095 / 18 838 / 300 933
  64. Monthly average / 282 409 / 20 471 / 302 880
  65. Availability / 3 862 / 498 / 4 360
  66. 791. As can be seen, the budget allows coverage of the personnel establishment expressed as follows:
  67. Approved operating establishment: 298 153
  68. Approved framework: 286 271
  69. Vacant with post: 3 862
  70. Vacant without post: 11 882
  71. 792. As can be seen from this table, 3,862 posts are available which it has not been possible to fill by rotation of personnel who request change of unit via the employment roster, and these are covered by replacement personnel available in the employment roster.
  72. 793. In addition, it can be seen that the occupancy of posts has maintained a pattern of cover agreed bilaterally between the CNMNRH and the SNTSS. Thus, there has not been a reduction, nor has filling of vacant posts stopped and it is reiterated that occupancy for doctors and nurses has been maintained as shown in the following tables:
  73. Pattern of occupied posts 2004-05
  74. --------------------------------------------------------------------------------
  75. Base
  76. Posts
  77. Category / August/2004 / September/2005
  78. Doctors / 44 439 / 44 676
  79. Nurses / 80 057 / 80 132
  80. Variance
  81. Category / Absolute / Relative
  82. Doctors / 237 / 0.53
  83. Nurses / 75 / 0.09
  84. --------------------------------------------------------------------------------
  85. Students
  86. Posts
  87. Category / August/2004 / September/2005
  88. Doctors / 933 / 843
  89. Nurses / 780 / 746
  90. Variance
  91. Category / Absolute / Relative
  92. Doctors / -90 / -9.65
  93. Nurses / -34 / -4.36
  94. --------------------------------------------------------------------------------
  95. Replacements
  96. Posts
  97. Category / August/2004 / Absolute
  98. Doctors / 5 607 / 5 070
  99. Nurses / 6 258 / 5 218
  100. Variance
  101. Category / Absolute / Relative
  102. Doctors / -537 / -9.57
  103. Nurses / -1 040 / -16.62
  104. --------------------------------------------------------------------------------
  105. Total
  106. Posts
  107. Category / August/2004 / Absolute
  108. Doctors / 50 979 / 50 589
  109. Nurses / 87 095 / 86 096
  110. Variance
  111. Category / Absolute / Relative
  112. Doctors / -390 / -0.77
  113. Nurses / -999 / -1.15
  114. 794. As regards the view of the SNTSS that the IMSS is in breach of the obligation to recognize the function of trade union representation and defence of SNTSS workers, which is contrary to ILO Convention No. 87, the IMSS states that it did not fail to comply with the obligation established in clauses 22, 22bis and 23 of the collective agreement. The SNTSS continues to be titular to the collective agreement, with the exclusive right to propose persons to occupy basic posts and the filling of vacant posts in autonomous categories. The IMSS has only recruited persons proposed by the SNTSS for basic posts. Thus, it has recognized the function of trade union representation of that trade union in accordance with the collective agreement.
  115. 795. As regards the allegation by the SNTSS that the IMSS is reducing posts as a result of retirements, leave, holidays, incapacity on health grounds and death of active personnel, which gives rise to serious and irreparable harm, the IMSS states that it has not reduced posts this year, because it has not stopped filling vacant posts, as shown above. The occupancy of basic posts has been adjusted to the budgetary framework agreed between the CNMNRH and general secretaries of the SNTSS, taking into account, furthermore, the coverage percentages indicated in the “Agreement on renewal of the undertaking between the IMSS and the SNTSS to raise the quality of services”. Thus the recruitment of personnel for vacant basic posts falls within what was agreed between the IMSS and the SNTSS.
  116. 796. The SNTSS alleges that the unilateral decision of the IMSS to take this action is because the bargaining with the SNTSS on the new retirement and pension scheme has not been completed. In this respect, the IMSS states that, as soon as the relevant bargaining was concluded on 14 October 2005, an application was made on 15 October 2005 in Special Board 9bis of the Federal Conciliation and Arbitration Board, stating that, as a conciliation settlement had been reached, the agreement signed by the IMSS and the SNTSS was revoked and the Board was asked to approve the agreement reached by the parties in respect of retirements and pensions. The SNTSS stated that, as its applications were satisfied, it withdrew its strike call, and the Board agreed to approve the agreement, urging the parties to uphold and apply it at all times as if it were binding with the force of a court judgement. That done, the parties agreed on the changes to the collective agreement which would cover the period 2005-07, entering into force on 16 October 2005. The SNTSS Executive Committee itself published an information bulletin on 15 October 2005 addressed to workers of the Mexican Social Security Institute, which reads as follows:
  117. At its last plenary meeting yesterday, the XLIV National Ordinary Congress approved by 603 votes the terms of the contractual review 2005-2007, and the increase to the salary scale, in a democratic vote of 888 delegates present and voting.
  118. This revision of the collective agreement is of capital importance, not only for the fact of having taken decisions concerning the permanence of our benefits and obtaining a direct salary increase in the salary scale of 4 per cent and an increase of 2 per cent in line 11 (housing benefit, clause 63bis, paragraph “c”) which is higher than the general average contractual wage increases this year, but for the fact, of much greater importance, of having succeeded in resolving the problem of cover of vacant posts in the Institute, with the commitment to recruit between 62,500 and 65,000 new basic workers under the mechanism indicated in the contractual clauses relating to recruitment of workers.
  119. Also of great importance is the agreement relating to the Retirement and Pension Scheme which does not in any way affect existing retirees and pensioners, who continue with their pension and benefits set out in the Retirement and Pension Scheme, without making any contribution.
  120. Active workers also keep the requirements and conditions for entitlement to retirement, i.e. they will continue to retire after 27 or 28 years services irrespective of their biological age, they will continue to enjoy all the benefits of the Retirement Pension Scheme and their contribution to the financing of the Scheme will increase by one percentage point in October each year, until it reaches 10 per cent.
  121. Candidates registered in the employment roster who worked in the Institute before 16 October of this year will continue to be protected under the current Retirement and Pension Scheme and will contribute the same percentage to its financing as basic workers.
  122. Workers who enter after 15 October this year will retire after 34 years service, for women, or 35 years for men, with a minimum age of 60 years, and a maximum amount of 100 per cent of the last base salary as set out in article 5 of the Retirement and Pension Scheme, and will contribute to the Scheme starting this year at 4 per cent, which will increase by 1 per cent annually up to 10 per cent. The amount of their pension will increase on the same dates, percentages and amounts as for active workers, i.e. it will be dynamic as for current retirees and pensions.
  123. Contributions to the Retirement and Pension Scheme above 3 per cent of active workers and new entrants will ensure that the retirement conditions will equate to approximately 65,000 basic workers who are to be recruited in a programme starting 17 October next.
  124. Also on the subject of the Retirement and Pension Scheme, a joint committee will be created to seek mechanisms to strengthen the Institute’s financing and adjustments to the regulatory framework to find solutions to resolve its financial problems.
  125. This revision in which the IMSS accepted the proposal approved by the LIX SNTSS National Council and ratified by the XLIV National Congress showed that the trade union’s proposal is the extremely comprehensive, viable and sustainable, and that the smear campaign by the previous administration had the perverse effect of creating a dispute to the detriment of the Mexican Social Security Institute.
  126. The SNTSS confirms its commitment to the workers in the IMSS and their families, to improve the quality and access to health care, its commitment to social security and what it represents, and our commitment to the future of the country.
  127. 797. In the light of the foregoing, the Government believes that it did not breach the provisions of ILO Convention No. 87, since at no time does the SNTSS indicate that the Government of Mexico prevented it from freely exercising its right to constitute itself as a trade union. It did not prevent it from exercising its rights to draw up its statutes and regulations, freely elect its representatives, organize its administration and activities or formulate its programme of action. Neither did it place obstacles in the way of forming federations and confederations and affiliating to them. In addition, the SNTSS had freely exercised its right to collective bargaining which led it to agree with the IMSS the changes to the collective agreement for the biennium 2005-07, which includes the “Additional agreement for retirement and pensions of new basic workers”. In addition, the trade union was able to assert its rights in accordance with the collective agreement by participating in the National Joint Human Resources Management Committee, be recognized as titular to the collective agreement and ensure respect for its exclusive right to nominate persons to occupy basic posts.

C. The Committee’s conclusions

C. The Committee’s conclusions
  1. 798. The Committee observes that in the present complaint the complainant trade union alleges violation by the Mexican Social Security Institute (IMSS) of the provisions of the collective agreement relating to the recruitment and replacements for vacant posts and the bilateral procedure for filling such vacancies, and also the suspension of cover of vacant posts from 11 August 2004 which sought to reduce the Retirement and Pension Scheme of the Mexican Social Security Institute. According to the complainant trade union, by 30 April 2005, unfilled vacancies totalled 16,758 (of which 3,054 were doctors’ posts and 3,307 nurses). Out of a total of 297,678 existing posts at 11 August 2004, at the end of April 2005, 280,920 were still occupied. According to the complainant trade union, a further reduction in posts was expected over the rest of the year 2005 of some 39,920. If the current trend continued, there would only be 241,118 workers left in the IMSS.
  2. 799. The Committee notes the Government’s statements, according to which: (1) the complainant organization at no time indicated that it had prevented it from exercising the rights enshrined in Convention No. 87; (2) the allegations refer to aspects of Convention No. 98 which Mexico has not ratified; (3) the obligation to recognize the principle of freedom of association belongs to the member States under the ILO Constitution and for the Committee to hear a complaint, the alleged violation of freedom of association must derive from acts committed by the Government and not, as in the present case, by acts as employer by a decentralized body such as the Mexican Social Security Institute. The Committee recalls in this respect that facts imputable to individuals incur the responsibility of States because of their obligation to remain vigilant and take action to prevent violations of human rights [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 19] and that this principle also applies to all powers of the State and that the Committee’s procedure can be invoked in relation to States which have not ratified the Conventions on fundamental rights relating to freedom of association and collective bargaining.
  3. 800. As regards the substance of the case, the Committee notes the Government’s statements and the information communicated by the IMSS according to which: (1) in the period January-October 2005 to which the complainant trade union refers, the average post occupancy in the IMSS was 282,409 which represents 96.01 per cent of the budgetary framework agreed bilaterally with the trade union, where 100 per cent would be 286,271; (2) the complainant trade union agrees in the “Agreement on renewal of the undertaking between the IMSS and the SNTSS to raise the quality of services” that 11,882 posts would not be filled, such that the recruitment of personnel to vacancies is in accordance with what was agreed between the IMSS and the SNTSS; (3) posts were filled bilaterally by the Joint Human Resources Management Committee and the complainant trade union for which reason there was no reduction nor were vacant posts not filled, including doctors and nurses (as shown in the tables included in the Government’s reply); (4) in October 2005, the IMSS and the complainant trade union denounced the agreement which they had signed and signed a new collective agreement with changes (including the “Additional agreement on retirement and pensions of new basic workers”), and the complainant trade union had stated to the competent authority that as its requests had been satisfied, it was withdrawing its applications and strike call; (5) the complainant trade union itself in a communication addressed to the IMSS workers, dated October 2005, following the new collective agreement, reported positively on matters related to salaries, pensions and retirement and indicated that the agreement would guarantee conditions of retirement of approximately 65,000 workers who were to be recruited in a programme starting on 17 October 2005.
  4. 801. Taking into account the Government’s explanations and information and the new collective agreement which ended the collective dispute, the Committee decides not to pursue the examination of this case.

The Committee's recommendations

The Committee's recommendations
  1. 802. In the light of its foregoing conclusions, the Committee invites the Governing Body to decide that this case does not call for further examination.
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