Rapport définitif - Rapport No. 327, Mars 2002

Cas no 2155 (Mexique) - Date de la plainte: 10-JUIN -01 - Clos

Allegations: Discrimination against a trade union following the establishment of another trade union in the same enterprise

1. 684. The complaint in this case is contained in communications dated 23 May and 10 June 2001 from the Public Employees’ Trade Union for the Collective Transport System for the Metropolitan Zone (SESESTCZM). The Government sent its observations in a communication dated 9 January 2002.
2. 685. 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. 686. In its communications dated 23 May and 10 June 2001, the Public Employees’ Trade Union for the Collective Transport System for the Metropolitan Zone (hereinafter referred to as the Employees’ Trade Union of SISTECOZOME) alleges that by virtue of the recognition of the position of Secretary-General of the other trade union in December 1999 (the Workers’ Trade Union for Collective Transport in the Metropolitan Zone), SISTECOZOME has carried out a series of measures against it:
   • (a) an illegal order for five members of the trade union’s executive committee who were on union leave (Hernán Sierra Vega, Jesús Castillo Rodríguez, Gerardo de Anda Arámbula, Francisco Javier Cisneros Carboneros and Francisco Díaz Flores), to present themselves at the SISTECOZOME facilities, was issued by the general management (copies of the orders to return to work were sent, referring in at least two of the cases to previous union leave);
   • (b) illegal eviction (12 March 2001) from the building in which the executive committee has had its offices since 1987 in order to give this to the Workers’ Trade Union for Collective Transport in the Metropolitan Zone;
   • (c) no reply to a request (16 May 2001) to transfer the trade union dues and mutual income that belongs to its members;
   • (d) disregard for the legal personality of the Employees’ Trade Union of SISTECOZOME and its executive committee;
   • (e) harassment of the employees of the enterprise not to belong to the Employees’ Trade Union of SISTECOZOME, forcing them to join the Workers’ Trade Union for Collective Transport in the Metropolitan Zone; and
   • (f) disregard for the legal personality of Francisco Díaz Flores as Secretary-General of the Employees’ Trade Union of SISTECOZOME, as the enterprise held a meeting of the administrative council without his presence.

B. The Government's reply

1. 687. In its reply dated 9 January 2002, the Government stated that the Collective Transport System for the Metropolitan Zone (SISTECOZOME), is a decentralized public body with its own legal personality and patrimony. This enterprise has two trade unions: the Employees’ Trade Union of SISTECOZOME, led by Mr. Francisco Díaz Flores, and the Workers’ Trade Union for Collective Transport in the Metropolitan Zone, led by Mr. Toribio Lucero García.
2. 688. It should be emphasized that the issues referred to by the Employees’ Trade Union of SISTECOZOME arise solely from the coexistence of these two trade unions, as the enterprise has always strictly complied with labour legislation governing employer-employee relationships and this has never been a reason for conflict with the trade union.
3. 689. Regarding the request for Hernán Sierra Vega, Jesús Castillo Rodríguez, Gerardo de Anda Arámbula, Francisco Javier Cisneros Carboneros and Francisco Díaz Flores to present themselves at the SISTECOZOME facilities, it should be emphasized that these workers do not have and have not had union leave and neither have they requested it.
4. 690. To this effect, it is important to quote the jurisprudence that the Supreme Court of Justice has upheld, which reads as follows:
   • Workers, leave of, for trade union reasons. Fifth Epoca. Proceedings: Court Four. Source: Judicial Seminar of the Federation. Volume LXXII. Page 6431.
   • Just because a collective labour contract may lay down in one of its clauses that an employer has an obligation to grant trade union leave to employees does not mean that an employee cannot be dismissed for missing work without a valid reason, simply because he/she has requested the relative leave from his/her trade union. This Supreme Court has established that effectively there exists an obligation on the part of the employer to grant workers leave in order to carry out trade union activities, in agreement with Part XI of article 111 of the Federal Labour Law, but that this leave must be requested in any case and it is not enough to justify missing work by notifying the trade union and having it grant the leave as, in accordance with the law, the trade union is not the body responsible for granting leave but merely the channel through which leave is requested by the person concerned.
5. 691. As such, the request for the members of the executive committee of the Employees’ Trade Union of SISTECOZOME to present themselves at the SISTECOZOME facilities is, in law, a request to them to return to work in their capacity as workers who had not requested union leave from the enterprise.
6. 692. Relating to the alleged eviction of the Employees’ Trade Union of SISTECOZOME from the building from which it carries out its activities, legislation does not require SISTECOZOME to provide trade unions with a workplace in which to carry out their trade union activities. However, since 1992 the enterprise has provided the Employees’ Trade Union of SISTECOZOME with its facilities.
7. 693. It is incorrect that any eviction has taken place. Now that another trade union has been established, SISTECOZOME believes it fair and equitable that both trade union organizations enjoy the same privileges, for which reason Mr. Toribio Lucero García, the Secretary-General of the Workers’ Trade Union for Collective Transport in the Metropolitan Zone, was notified that he should share this space with the Employees’ Trade Union of SISTECOZOME. On 12 March 2001, Mr. Toribio Lucero García and other members of the executive committee went to the offices provided to both trade unions by SISTECOZOME in order to share the facilities, but they were met with resistance from representatives of the Employees’ Trade Union of SISTECOZOME. Owing to the lack of readiness on the part of both trade unions to share the building, SISTECOZOME decided to close the office, and the situation remains current. The Employees’ Trade Union of SISTECOZOME continued to occupy the building, as was certified before a public notary. For this reason, none of the criminal proceedings for eviction lodged by the Employees’ Trade Union of SISTECOZOME have been successful.
8. 694. Regarding the alleged withholding of the trade union dues (February to June) and mutual income which is owing to the members of the Employees’ Trade Union of SISTECOZOME, it should be mentioned that on 25 July 2001, the enterprise handed Francisco Díaz Flores a check for 19,389.08 pesos (nineteen thousand three hundred eighty-nine pesos and eight centavos), which amount is consistent with the trade union dues and mutual income in favour of the trade union. The receipt for this amount can be found under DG/362/2001 (copy attached).
9. 695. Relating to the alleged disregard of the legal personality of the Employees’ Trade Union of SISTECOZOME and its executive committee, this trade union is recognized as a legally established organization, as is the legal personality of each and every one of the members of its executive committee. This is corroborated by their participation in the joint commissions on accidents of electrically powered vehicles and hereditary damages, which are regularly held at the enterprise.
10. 696. Likewise, the Employees’ Trade Union of SISTECOZOME continues to receive regularly the trade union contributions and mutual income of its members. Attached are copies of documents that, over the past year, have been sent to the Secretary-General and to various members of the executive committee of the Employees’ Trade Union of SISTECOZOME.
11. 697. Regarding the alleged harassment by the authorities of employees at the enterprise not to belong to the Employees’ Trade Union of SISTECOZOME, forcing them to join the Workers’ Trade Union for Collective Transport in the Metropolitan Zone, it should be pointed out that at no time has SISTECOZOME undertaken in any way to restrict the freedom of association of its workers and it has always allowed open competition arising from the presence of the two trade unions, who have freely exercised their rights of association and, where appropriate, petition. Workers at SISTECOZOME are free to join any one of the trade unions that represent them. The enterprise plays no part in this process as the request for income is provided by the trade unions themselves.
12. 698. Regarding the participation of Mr. Francisco Díaz Flores in the administrative council of SISTECOZOME, legislation does not require the enterprise to include one or the other trade union in particular.
13. 699. The enterprise indicates that it considers that the Workers’ Trade Union for Collective Transport in the Metropolitan Zone has the majority representation as it administers the collective labour agreement and represents the greatest number of workers at the enterprise. Because of this, the administrative council decided to invite its Secretary?General to participate.
14. 700. Finally, the alleged violations referred to in the communications sent to the International Labour Organization by the Employees’ Trade Union of SISTECOZOME have been the subject of five legal proceedings, not one of which has succeeded.

C. The Committee's conclusions

1. 701. The Committee notes that in this case, the complainant organization (the Employees’ Trade Union of SISTECOZOME) has alleged that by virtue of the recognition of legal personality of the Secretary-General of the other trade union in December 1999 (the Workers’ Trade Union for Collective Transport in the Metropolitan Zone), SISTECOZOME has carried out a series of measures against it:
   • (a) an illegal order for five members of the trade union’s executive committee who were on union leave to present themselves at the SISTECOZOME facilities;
   • (b) the illegal eviction (12 March 2001) from the building in which the executive committee has had its offices since 1987 in order to cede this to the Workers’ Trade Union for Collective Transport in the Metropolitan Zone;
   • (c) the lack of reply to the request (since 16 May 2001) to transfer the trade union dues and mutual income belonging to its members;
   • (d) the disregard for the legal personality of the Employees’ Trade Union of SISTECOZOME and its executive committee;
   • (e) the harassment of employees at the enterprise who do not belong to the Employees’ Trade Union of SISTECOZOME, forcing them to join the Workers’ Trade Union for Collective Transport in the Metropolitan Zone; and
   • (f) the disregard for the legal personality of Francisco Díaz Flores as Secretary-General of the Employees’ Trade Union of SISTECOZOME, as the enterprise held a meeting of the administrative council without his presence.
2. 702. The Committee notes that according to the Government: (1) the present case arises from the coexistence of the two trade union organizations mentioned; (2) the five workers allegedly deprived of their union leave do not have and have not had union leave and neither have they requested this (there is a legal obligation to grant leave but this must be requested of the employer, which was not the case for these employees); (3) the Employees’ Trade Union of SISTECOZOME -- which was at no time evicted -- opposed the shared use of the installations with the Workers’ Trade Union for Collective Transport in the Metropolitan Zone, which was decided upon by the enterprise and for which reason it was decided to close the office; (4) on 25 July 2001, the Employees’ Trade Union of SISTECOZOME was given a check for the trade union dues and mutual income corresponding to the period February-June; (5) the enterprise recognizes the complainant organization and the members of its executive committee and they take part in joint commissions; (6) at no time has SISTECOZOME issued instructions or taken part in the membership process of workers to one or the other trade union; (7) the administrative council of SISTECOZOME decided to invite the Secretary-General of the Workers’ Trade Union for Collective Transport in the Metropolitan Zone (and not the Secretary-General of the complainant organization) as this trade union is responsible for the collective agreement and represents a greater number of workers; furthermore, legislation does not require one or the other trade union in particular to be included; and (8) in none of the legal proceedings presented by the complainant organization have these allegations been substantiated.
3. 703. Having taken into account the Government’s statements, the Committee calls upon the officials of the complainant organization to make the requests for union leave, which is their right, directly to the enterprise. The Committee, however, points out that the documentation of the enterprise provided by the Government indicates that a number of the trade union members of the complainant organization already had union leave before the new trade union was established. The Committee invites the Government to take steps to bring the two trade unions of SISTECOZOME together in order to find the most satisfactory solution to the problem of the use of the facilities placed at the disposal of the trade union organizations by SISTECOZOME. The Committee notes that the complainant organization has provided no proof that SISTECOZOME may have forced workers to join the other trade union. The Committee considers that, having taken into account the Government’s statements, the remaining issues presented by the complainant organization do not call for further examination.

The Committee's recommendations

1. 704. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee invites the officials of the complainant organization to request the trade union leave to which they are entitled directly from the enterprise.
   • (b) The Committee requests the Government to take steps to bring the two trade unions of SISTECOZOME together in order to find the most satisfactory solution possible to the problem of the use of the facilities put at their disposal by the enterprise.