Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 327, Mars 2002

Cas no 2115 (Mexique) - Date de la plainte: 08-FÉVR.-01 - Clos

Allegations: Refusal to register amendments to a constitution

1. 664. The Progressive Trade Union of Workers of the Construction Industry of the Mexican Republic presented the complaint in communications dated 8 February and 25 March 2001. The Government sent its observations in communications dated 30 May and 30 October 2001, and 27 February 2002.
2. 665. Mexico has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), but not the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 666. In its communications dated 8 February and 25 March 2001, the Progressive Trade Union of Workers of the Construction Industry of the Mexican Republic states that it is a national industrial trade union, which complies with the requirements of the Mexican federal labour legislation, has a legally approved constitution and is registered as No. 2000 by the Ministry of Labour and Social Security of the Federal Government of the United Mexican States.
2. 667. The complainant organization states that, on 26 August 2000, it held a special general assembly, which conducted a comprehensive reform of the organization’s constitution. This included, on the basis of an absolute majority vote by the organization’s members, the reform of article 8 of the constitution, which provided for a broadening of the trade union’s objective. The amended article 8 was drafted in the following terms:
   • Membership of the trade union is open to plant workers and temporary, casual or aspiring workers who provide, wish to provide or have provided their services to any enterprise, company, factory, works or establishment that forms part of the construction industry and/or sector in its various forms, including those involved in calculation, design, planning, analysis, supervision, control, development, installation of gas and pipelines, electricals and electricity, including the generation, transformation and transmission of electrical energy and, in general, any infrastructure works, as well as any type of construction work, be it civil, private or public, whether it involves terracing, breaking, demolition, compression, excavation, foundations, cementing, navigation, topography, siting, localization, decoration, maintenance, cartography, modelling, assembly, reinforcement, prestressing, prefabrication, scaffolding, staging, domes, vaults, panelling, moulding, extraction, dredging, perforation, asphalt flooring, asphalt, grinding, processing and manufacture of all types of construction materials, including sand, stone, gravel, granite, marble, quarrystone, lime, silicates, cement, concretes, additives and colorants or studies into the ground’s resistance, seismological materials or any other similar activity.
3. 668. However, the Government, through the Ministry of Labour and Social Security acting through its Directorate-General for the Registration of Associations, promulgated, in violation of the abovementioned laws and agreement, a resolution stating that it "declines to register the amendment to article 8 of the constitution of the Progressive Trade Union of Workers of the Construction Industry of the Mexican Republic relating to its scope of activity in the terms agreed at the General Assembly held on 26 August last".
4. 669. The complainant organization alleges that this involves interference in its internal affairs and that the Government resolution violates the provisions of articles 357 and 359 of the Mexican Labour Law, which state that workers and employers shall have the right to establish trade unions without being required to obtain prior authorization and that trade unions shall have the right to draw up their constitutions and rules, freely elect their representatives, organize their administration and activities and formulate their programme of action. The abovementioned resolution also violates the provisions of ILO Convention No. 87.
5. 670. The complainant organization adds that the constitution was amended because it is now possible to generate electrical energy using portable equipment, which is manufactured, managed and operated by enterprises in the construction sector, such as the Maquinaria Diesel SA company, as was made clear to the relevant government agencies.
6. 671. Finally, the complainant organization states that it has appealed for revision of the resolution promulgated by the Directorate-General for the Registration of Associations and that this should be resolved by the Office of the Under-Secretary for Labour of the Ministry of Labour and Social Security within four months. However, although the time frame has already expired and there have been two requests submitted for settlement, no settlement has been reached to date. This clearly damages the interests of the trade union, which is thus deprived of the possibility of recourse to higher authorities such as the Court of Appeal.

B. The Government's reply

1. 672. In its communications dated 30 May and 30 October 2001, the Government states that the Progressive Trade Union of Workers of the Construction Industry of the Mexican Republic requested the Directorate-General for the Registration of Associations of the Ministry of Labour and Social Security to register the amendments to its constitution agreed at the special general assembly held on 26 August 2000. The amendments included amendment of article 8 to broaden the scope of action.
2. 673. It adds that resolution No. 211224642, issued by the Directorate-General for the Registration of Associations, declines to register the amendment to article 8 of the constitution of the Progressive Trade Union of Workers of the Construction Industry of the Mexican Republic but does not affect the other articles amended. The trade union appealed against the resolution to the Office of the Under-Secretary for Labour of the Ministry of Labour and Social Security on 17 November 2000. The Office of the Under?Secretary for Labour responded to the appeal by confirming each and every part of the resolution by the Directorate-General for the Registration of Associations in Official Letter No. 1137 dated 29 March 2001. The Progressive Trade Union of Workers of the Construction Industry of the Mexican Republic submitted an appeal against the decision of the Office of the Under-Secretary for Labour, which is still pending settlement by the First District Labour Court of the Federal District, Case No. 604/2001.
3. 674. The Government states that article 357 of the Federal Labour Law stipulates that workers and employers shall have the right to establish trade unions without being required to obtain prior authorization. The Progressive Trade Union of Workers of the Construction Industry of the Mexican Republic exercised that right in being established as a trade union and undergoing registration by the Directorate-General for the Registration of Associations under the number 2000 as an industrial trade union. As regards article 359 of the Federal Labour Law and Article 3 of ILO Convention No. 87, which state that trade unions shall have the right to draw up their constitutions, the Progressive Trade Union of Workers of the Construction Industry of the Mexican Republic possesses a legally registered constitution that was amended at the special general assembly of 26 August 2000.
4. 675. The Government adds that the authority is required to monitor compliance with and application of the provisions of the labour standards (article 40, section I, of the Organic Law of the Public Federal Administration). The Directorate-General for the Registration of Associations declined to register the amendments to article 8 of the constitution exclusively inasmuch as they refer to the broadening of the objectives of the union, because it considers inappropriate any amendment that would detract from the original nature of the union in question. The enterprises in which its members work have construction as their social objective. The Federal Labour Law is clear on the classification of trade unions and does not recognize groups covering two or more industries, as the Progressive Trade Union of Workers of the Construction Industry of the Mexican Republic has attempted to do. As an industrial trade union, it should consist of workers who provide their services within one or several enterprises of the same industry, as established by law.
5. 676. As regards the supposed failure to pronounce on the application for revision submitted by the Progressive Trade Union of Workers of the Construction Industry of the Mexican Republic and the damage it is suffering as a result of the delay, the Government states that the Office of the Under-Secretary for Labour pronounced in Official Letter No. 1137 dated 29 March 2001. The Progressive Trade Union of Workers of the Construction Industry of the Mexican Republic, in its appeal, expressly admits that it was notified both of the resolution to decline to register the amendment to article 8 and of the decision on the application for revision.
6. 677. In conclusion, the Government emphasizes that the Directorate-General for the Registration of Associations, as the competent authority, has ensured compliance with the law: where trade unions need to register amendments to their constitutions, the amendments must be in line with the union’s social objective, in accordance with articles 360 and 365 of the Federal Labour Law and article 18, Part III, of the internal regulations of the Ministry of Labour and Social Security. The Progressive Trade Union of Workers of the Construction Industry of the Mexican Republic has been able to exercise its rights under the law and has recourse to remedies against the resolutions by which it considered itself affected. Finally, in its communication of 27 February 2002, the Government states that the district judge of first instance, in charge of labour matters issued, on 31 December 2001, an amparo decision in favour of the trade union, which the Under-Secretary for Labour and Social Welfare has appealed.
7. 678. The Government draws attention to the fact 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 issue their decision. It also states that, until they pronounce, there can be no claim of any violation of the rights of the Progressive Trade Union of Workers of the Construction Industry of the Mexican Republic. Finally, in its communication of 27 February 2002, the Government states that the district judge of first instance in charge of labour matters issued, on 31 December 2001, an amparo decision in favour of the trade union, which the Under-Secretary for Labour and Social Welfare has appealed.

C. The Committee's conclusions

1. 679. The Committee notes that in this case the Progressive Trade Union of Workers of the Construction Industry of the Mexican Republic objects to resolution No. 211224642, issued by the Directorate-General for the Registration of Associations, which declined to register the amendment to article 8 of the union’s constitution. The refusal is on the grounds that it is an industrial trade union and the amendment would allow it to include any industrial establishment and/or branch of construction involved in gas installations, gas pipelines, electricals and electricity, including the generation, transformation and transmission of electrical energy and other activities. The Committee takes note of the complainant’s claim that the amendment is needed because it is now possible to generate electrical energy using portable equipment, which was manufactured, managed and operated by enterprises in the construction sector. The Committee notes that, according to the complainant, an application was made to the administrative authority for revision, that it was denied and that the First District Labour Court is now processing the appeal.
2. 680. The Committee also takes note of the Government’s statement that the complainant organization was free to draw up and amend its constitution and that registration of the amended article 8 was denied because the Federal Labour Law does not recognize groups covering two or more industries. It states that the Progressive Trade Union of Workers of the Construction Industry of the Mexican Republic is attempting to alter its objective, extending it to gas installations, gas pipelines, electricals and electricity, including the generation, transformation and transmission of electrical energy and other activities. However, under the legislation, it should consist of workers who provide their services within one or several enterprises of the same industry; through the amendment, it has departed from its social objective. The Committee takes note of the Government’s observation that, until the judicial bodies pronounce on the appeal, there is no violation of the trade union’s rights.
3. 681. The Committee notes that the present case involves the possibility of a trade union amending its constitution in order to offer membership to workers in an activity that, at first glance, appears distinct from the union’s initial objective. The Committee observes that the amendment is based on the fact that the construction industry can now operate electrical generating plants. The Committee recalls in this connection that the free exercise of the right to establish and join trade unions implies the free determination of the structure and composition of unions, the national legislation should only lay down formal requirements as regards trade union constitutions, and the constitutions and rules should not be subject to prior approval by the public authorities [Digest of decisions and principles of the Freedom of Association Committee, 1996, paras. 275 and 333]. The Committee urges the Government to take measures so that the legislation is modified so as to ensure that the abovementioned principle is fully respected. The Committee notes that, according to the Government, the district judge of first instance in charge of labour matters, issued an amparo decision in favour of the complainant trade union, and that the Under-Secretary for Labour has filed revision proceedings in this respect. The Committee expresses the hope that the competent judicial authorities will take this principle into account when examining the issue raised in the present case.
4. 682. Moreover, 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. 683. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) As regards the refusal by the Directorate-General for the Registration of Associations to register the amendments to an organization’s by-laws, the Committee expresses the hope that when examining the issue raised in the present case the competent judicial authorities will take into account the principle according to which the free exercise of the right to establish and join trade unions implies the free determination of the structure and composition of unions, that the national legislation should only lay down formal requirements as regards trade union constitutions, and the constitutions and rules should not be subject to prior approval by the public authorities, and requests the Government to keep it informed of developments.
   • (b) The Committee urges the Government to take measures to modify the legislation so as to ensure full respect of the abovementioned principle.