Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 370, Octobre 2013

Cas no 2694 (Mexique) - Date de la plainte: 05-FÉVR.-09 - En suivi

Allegations: General questioning of the industrial relations system as a consequence of the extremely widespread use of employer protection collective agreements

1. 536. The complaint in this case was examined by the Committee at its meeting in June 2012, when it presented an interim report to the Governing Body [see 364th Report, paras 729–759, approved by the Governing Body at its 315th Session (June 2012)].
2. 537. The Government presented new observations in a communication dated 22 May 2013.
3. 538. 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. Previous examination of the case

1. 539. At its June 2012 meeting, the Committee made the following recommendations [see 364th Report, para. 759]:
   • (a) The Committee requests the Government to examine, in the framework of the tripartite dialogue, the issues raised in this complaint regarding the enforcement of labour and trade union legislation. As the Committee stated in its previous examination of this case, such dialogue should cover: (1) the questions relating to the trade union security clauses, “exclusion clauses”, which were declared unconstitutional by the Supreme Court and which may give rise to the kind of situations contemplated in the complaint; (2) questions relating to the minimum representativeness of trade unions in order to bargain collectively; and (3) the alleged lack of impartiality of the conciliation and arbitration boards (JCAs) and the allegedly excessive length of their proceedings.
   • (b) The Committee firmly expects that a dialogue will take place with the most representative national workers’ and employers’ organizations, as well as the six organizations that are complainants in this case or that have supported it.
   • (c) The Committee requests the Government and the complainants to report on developments and trusts that legislative and other measures will be taken in the near future to strengthen protection against anti-trade union practices in breach of collective bargaining principles, which have been raised in the present complaint.

B. The Government’s new reply

1. 540. In its communication dated 22 May 2013, the Government indicates that as a result of the joint efforts of the Government and the social partners, following a number of discussions between Congress and employers’ and workers’ representatives, under the Decree amending, adding and repealing various provisions of the Federal Labour Act published in the Official Bulletin of the Federation of 30 November 2012, various amendments to the Federal Labour Act (LFT) came into force. The most relevant amendments to this case concern: (a) union security clauses: the “exclusion by separation clause” is eliminated (article 395 LFT, paragraph 2); (b) efficiency: the union’s formalities before the registering authorities have been facilitated through the use of electronic tools to submit reports and notify changes to their executive boards and regulatory amendments, as well as new memberships and resignations (article 377 LFT); (c) democracy: the trade union statutes will provide the procedure for the election of the executive board and establish the number of members, protecting the freedom of vote under the conditions established in the general assembly, of indirect secret voting or direct secret voting (article 371.IX LFT); and (d) transparency: Federal Conciliation and Arbitration Boards are required to publish the contents of collective labour agreements, thereby bringing them to the notice of the workers, who have legal instruments to amend, where necessary, the conditions which could affect them (article 391bis LFT).
2. 541. The Government adds that it plans to introduce amendments to streamline labour justice, such as: (i) removing the Federal and Local Conciliation Boards; leaving only the Federal Conciliation and Arbitration Boards to hear and rule on labour disputes; (ii) incorporating the principle of conciliation into labour proceedings; (iii) establishing the special professional career service responsible for the intake, promotion, time in office, performance evaluations, dismissal and retirement of public servants of the Federal Conciliation and Arbitration Board; (iv) the professionalization of the legal staff of the Arbitration and Conciliation Boards, representatives to these and litigants on labour issues; (v) restructuring first instance ordinary proceedings; (vi) providing for the use of technological tools to facilitate labour justice administration and establishing rules for the provision, reception and examination of electronic evidence; (vii) establishing summary proceedings for disputes concerning social security benefits, housing contributions and benefits related to the pension saving system; and (viii) disciplinary correction fines, coercive measures and fines to sanction irregular appeals for review and claims against implementing acts.
3. 542. As regards the minimum representativeness of trade unions in order to bargain collectively, the Government declares that under article 364 of the Federal Labour Act, trade unions must have a minimum membership of 20 workers, pursuant to the following:
   • Article 364. Trade unions shall have a minimum membership of twenty workers in active service or of at least three employers. In determining the minimum number of workers, those workers whose employment relationship has been rescinded or terminated within a period of thirty days prior to the date of the trade union registration request, submission and approval shall be taken into consideration.
4. 543. The Government indicates that in companies with more than one active trade union, the holder of the collective labour agreement rights is the trade union with the highest number of affiliated workers, in accordance with articles 386 and 388 of the Federal Labour Act, which provide the following:
   • Article 386. A collective labour agreement is an agreement concluded between one or more trade unions and one or more employers, or one or more employers’ organizations, with the objective of establishing conditions under which they must perform their work in one or more companies or establishments.
   • Article 388. Where there are various trade unions within one same company, the following shall apply:
     • I. If there are various company or sectoral trade unions or both, the collective agreement shall be concluded with the one which has the highest number of affiliated workers within the company;
     • II. If there are various occupational trade unions, the collective agreement shall be signed with all the majority occupational trade unions, provided that they are in agreement among themselves. Where this is not the case, each trade union shall conclude a collective agreement for its profession; and
     • III. If there are various occupational and company or sectoral trade unions, the first may conclude a collective agreement for their profession, provided that the number of affiliates exceeds the number of workers of the same profession affiliated to the company or sectoral trade union.
5. 544. As regards collective agreement rights, the Federal Labour Act provides that:
   • Article 389. The loss of the majority referred to in the article above, as declared by the Conciliation and Arbitration Board, shall incur the loss of the collective agreement rights.
6. 545. The Government specifies that the labour authorities strictly observe trade union autonomy and on that basis, the trade unions enter into negotiations before the labour authority, subject to the powers and competences granted in their internal regulations, such as the trade union statutes, represented by an authorized trade union member, or the executive board (alone or with special trade union commissions), submitting the agreements concluded during negotiations to the approval of the trade union general assembly. The number of trade union representatives in collective bargaining is in no way limited or restricted.
7. 546. The Government, however, indicates that where disputes arise over collective agreement rights, the Conciliation and Arbitration Board is the body to which cases must be referred, within the scope of its competence, as its decisions are governed by law and take into account jurisprudence relating to conditions of representativeness for collective bargaining with the employer, such as:
   • – Trade union rights to collective bargaining. If a trade union is created and registered, acquiring legal personality on a given date, it is understood that its rights to engage in collective bargaining are effective from that date, even if subsequent bargaining has resulted in the separation of a number of its workers and the termination of the contracts of some of these, if there is an indication that this was an attempt to break up the trade union to deprive it of its personality and subsequently request the signature of the collective agreement, because even if the dismissed workers are considered to be separated from the company, they are still members of the trade union for the purposes of any relevant transactions, and the company itself does not deny this when it declares the union disbanded due to the workers’ ineligibility to form part of the organization without there being a specific decision by the labour authorities. Therefore, the decision requiring the company to sign a collective agreement with a trade union, in such circumstances, does not prejudice its rights.
   • Direct amparo (protection of constitutional rights) labour proceedings No. 9301141. Company Vergara and Rangel, 4 June 1942. Unanimity of four votes. Absent: Antonio Islas Bravo. Reporter: Hermilo López Sánchez.
   • – Minority trade unions are not entitled to carry out collective bargaining, which is the preserve of the majority trade union holding the collective agreement rights. Freedom of association constitutes a fundamental right under article 123 of the federal Constitution. This outlines the development of freedom of association in international instruments and in their interpretation and implementation by specialized bodies, such as the Committee on Freedom of Association of the International Labour Organization, the decisions and principles of which highlight the complex structure of this fundamental right, which comprises a number of rights. Accordingly, the constitutional right of freedom of association includes not only the right of individuals to form trade unions and affiliate themselves to the trade union of their choosing, but also the rights of established trade unions to perform the tasks expected of them. The principles of freedom of association comprise the following rights and freedoms: (1) the right of all workers to join an established trade union or create a new trade union; (2) the right of all workers not to join a given trade union or any trade union; (3) the right of all workers to disaffiliate themselves or resign from the association; (4) the right of all trade unions to use the necessary means of action to fulfil the duties constitutionally assigned to them; (5) the exercise by trade unions of the right to bargain and engage in disputes; (6) the trade union’s right to initiate collective disputes; (7) the right of every trade union to determine its programme of action, protecting it against illegitimate and undue interference by other trade unions; and (8) the right of workers not to suffer any prejudice to their professional or economic activity at the workplace on account of their affiliation or trade union activity. The latter implies the right of all trade unions to freedom of action, which covers all legal means of action, free from undue interference by third parties. However, minority trade unions are not entitled to carry out collective bargaining, although they may act and are entitled to speak on behalf of and represent their members in the event of an individual claim. The above is established in paragraph 359 of the Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, fifth (revised) edition, 2006, according to which: “Minority trade unions that have been denied the right to negotiate collectively should be permitted to perform their activities and at least to speak on behalf of their members and represent them in the case of an individual claim”. In this context, it is indisputable that minority trade unions are not entitled to engage in collective bargaining, to which only majority trade unions holding the collective agreement rights are entitled, without prejudice to freedom of association, provided that such groups are able to perform their activities and enjoy the right to speak on behalf of their members, and to represent them on an individual basis. [Tenth Circuit Administrative and Labour Collegial Tribunal. Direct amparo proceedings No. 490/2010. Independent Democratic Trade Union of the Graduate College of Tabasco. 13 January 2011. Unanimous vote. Speaker: José Luis Caballero Rodríguez. Secretary: Lucía Guadalupe Calles Hernández.]
8. 547. However, the Government indicates that in order to provide greater legal certainty in collective labour relations, the main aims of the legislative reform include: trade union transparency and democracy; and the determination of regulatory and supervisory powers in the implementation of labour and trade union legislation.
9. 548. The reform of the legal framework seeks to provide greater legal certainty in productive sectors, by improving the administration of labour justice, expediting it and rendering it professional and reliable; promoting transparency and effective accountability in trade union organizations, for the benefit of their members, with total respect for trade union autonomy and freedom, and provide the authorities with technological supervisory and law enforcement tools.
10. 549. This includes professionalizing the legal staff of the Conciliation and Arbitration Boards (court clerks, secretaries, conciliation officials, assistants, assistant secretaries, the general secretaries and chairpersons of special boards), the representatives to these bodies and litigants in labour proceedings. Legal staff are required to hold a law degree and certificate or qualifications to practice law, to have completed labour law studies and to enjoy a good reputation; representatives are required to hold a law degree or qualifications to practise law, and the corresponding certification, except in the case of workers’ representatives, who are only required to provide proof of training on labour issues; litigants are required to hold a law degree or qualifications to practice law, a professional license or a letter of completion (articles 626, 627, 627-8, 628, 629, 630 and 692 LFT). In addition to professionalizing the administration of labour justice, this should avoid irregular practices during the processing of cases, which prejudice the parties and cause procedural delays.
11. 550. Likewise, the current Federal Labour Act contains a series of provisions aiming to strengthen the Conciliation and Arbitration Boards, such as requirements on the minimum number of secretary-generals and deputy secretaries, whose appointment shall be carried out pursuant to the regulations approved in the plenary session on the professional career service and performance evaluation (article 605 LFT).
12. 551. Provisions aiming to improve the operation of the boards should also be noted. These include the amendment of the quorum requirement for convening plenary sessions from two-thirds to the majority of employers’ and workers’ representatives (article 615.II LFT).
13. 552. In order to avoid irregular practices and corruption, legal staff attached to the boards are not permitted to act as the agent, adviser or lawyer of the employer party in labour proceedings (article 632 LFT).
14. 553. Employers’ and workers’ organizations will see significant progress in speeding up the administration of labour justice. Moreover, sanctions are provided against lawyers who deliberately delay or intentionally obstruct labour proceedings and against public servants who cause delays (suspension or dismissal, and hearing before the Public Prosecutor) (article 48, penultimate and last paragraph, LFT). The aforementioned provisions aim to prevent dishonest conduct among some representatives and lawyers who wrongfully seek to artificially extend the duration of cases, thereby prejudicing the workers and their organizations.
15. 554. As regards social dialogue, the Government indicates that the main objective of the labour policy of the Government of President Enrique Peña Nieto, coupled with the reforms and institutional changes that have been established in the country, is to provide the working class with new opportunities that enable them to offer their families improved living conditions. One of the mainstays of this labour policy engages the Ministry of Labour and Social Security (STPS) to promote peaceful industrial relations, tripartite dialogue and respect for individual and collective workers’ rights, as a means of contributing to the governance of the country and as a fundamental condition to attract and maintain job-generating investments. In this framework, the STPS ensures permanent dialogue with the productive sectors and with the federal and local authorities, in particular including the following:
    • – Dialogue with employers’ and workers’ groups is constantly maintained through the review of their general working conditions, and in that context, the present administration carried out 2,282 pay and contract reviews in March 2013, which led to an average pay increase per worker of 4.38 per cent, which is equivalent to a purchasing power increase of 0.75 per cent.
    • – Through the Office of the Deputy Minister of Labour, continued and permanent dialogue is maintained with all workers’ organizations. It holds regular meetings with the members of the National Workers Union (UNT), the Mexican National Union of Miners, Metalworkers and Allied Workers (which supported the complaint presented by FITIM), and the National Union of Petroleum Technicians and Professionals (UNTyPP). Likewise, it is in continuous communication with trade unions, by holding discussions and meetings where concerns and opinions are respectfully exchanged on subjects of interest with a view to finding joint solutions.
16. 555. This inclusive, plural and transparent dialogue was extended to international organizations, such as the International Trade Union Confederation, which supported the complaint, and other international groups, under the Mexican presidency of the G20.
17. 556. In 2012 and at the beginning of 2013, follow-up was given to dialogue established with various trade unions and employers’ organizations which have expressed their specific concerns to the STPS.
18. 557. At the entry into office of the present Government, the Minister of Labour and Social Welfare, Mr Alfonso Navarrete Prida, held a working meeting with members of the UNT, headed by its leaders, Francisco Hernández Juárez (Secretary-General of the Union of Telephone Operators of the Republic of Mexico, which supported the complaint), Agustín Rodríguez Fuentes and Carlos Manuel Díaz Morineau.
19. 558. The Deputy Minister of Labour has also held meetings with organizations affiliated to the UNT, such as the UNTyPP, which supported the complaint, including dialogue with the participation of Pétroleros Mexicanos, where both parties collaborated on issues raised by the trade union and undertook to review each of the cases of its members.
20. 559. In conclusion, the Government highlights the following: (1) in the framework of tripartite dialogue, it continues fulfilling its commitment to ensure respectful and inclusive communication with the most representative national employers’ and workers’ organizations, and to promote an improvement in relations with the complainant organizations and with those that have supported the complaint, in line with the principles of freedom of association and collective bargaining; (2) the reform of the Federal Labour Act was an inclusive process, giving way to in-depth debates in Congress, including employers’ and workers’ representatives, academics and experts on the subject; (3) the current Federal Labour Act contains important provisions regarding trade union transparency and democracy and the specific definition of the rights and obligations of the labour authorities and courts, such as legal remedies allowing both employers’ and workers’ organizations to defend their rights with a view to eradicating any irregular practices in collective labour agreements, and (4) the possibility of invoking the “exclusion by separation clause” was eliminated.

C. The Committee’s conclusions

1. 560. The Committee observes that the issues pending in this case relate to the need for legislative and other measures to strengthen protection against anti-union practices in breach of collective bargaining principles, which have been raised in the present complaint. These include: (1) the questions relating to trade union “exclusion” security clauses, which were declared unconstitutional by the Supreme Court and which may give rise to the kind of situations contemplated in the complaint; (2) questions relating to the minimum representativeness of trade unions in order to bargain collectively; and (3) the alleged lack of impartiality of the Conciliation and Arbitration Boards and the allegedly excessive length of their proceedings. The Committee had requested the Government, within the framework of tripartite dialogue, to examine the questions raised together with the most representative employers’ and workers’ organizations and with the six complainant organizations that presented or supported the complaint.
2. 561. The Committee notes with interest that the Government’s reply refers to progress regarding the issues raised and, in particular, observes that on 30 November 2012 a reform of the Federal Labour Act came into force which eliminates the exclusion by separation clause in collective agreements (which authorized dismissals in cases of resignation of union membership), requires Federal Conciliation and Arbitration Boards to make the contents of collective agreements public and eliminates the local conciliation boards, making the Federal Conciliation and Arbitration Boards alone responsible for the resolution of labour disputes. The Committee also notes that the Government’s reply indicates that the legislative reform also provides for greater transparency and democracy in trade unions, the professionalization of the legal staff of the abovementioned boards, the adoption of rules to prevent irregular or corrupt practices in their proceedings, moves to expedite and streamline procedures and increased fines for deliberate delays.
3. 562. The Committee takes note of the information provided by the Government on the legal provisions and the national jurisprudence regarding the minimum number of workers required to create a trade union; the entitlement of the majority trade union to collective agreement rights; the rights of minority trade unions; the right of all workers to join or not join, and to create a trade union; and the right to decline affiliation. The Committee observes that the provisions described by the Government do not appear to go against the principles of freedom of association and collective bargaining.
4. 563. The Committee takes note of the information provided by the Government regarding its social dialogue and tripartite dialogue policy, whereby the Office of the Minister of Labour and Social Welfare has established permanent dialogue with employers’ and workers’ groups, achieving 2,282 pay and contract reviews (March 2013), including dialogue or communication with national trade union organizations (some of which are complainants in this case) and with organizations that have supported the complaint and the organizations to which these are affiliated.
5. 564. While it appreciates the information provided by the Government, the Committee stresses that it is important that the impact of the reform of the Federal Labour Act on overcoming the problems raised in this case should be evaluated in terms of the legislation, but especially in terms of practice, by the most representative national employers’ and workers’ organizations and by the six organizations that presented or supported the complaint. The Committee therefore requests the Government, in dialogue with these organizations, to evaluate the impact of the legislative reform on the issues raised and to identify any issues that remain unresolved in law or practice.
6. 565. The Committee requests the Government and the complainant organizations to keep it informed in this regard.
7. 566. The Committee reminds the Government that it may avail itself, if it so wishes, of ILO technical assistance in the framework of the evaluation process of national law and practice.

The Committee’s recommendations

1. 567. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) While it appreciates the information provided by the Government, the Committee stresses that it is important that the impact of the reform of the Federal Labour Act on overcoming the problems raised in this case should be evaluated in terms of the legislation, but especially in terms of practice, by the most representative national employers’ and workers’ organizations and by the six organizations that presented or supported the complaint. The Committee therefore requests the Government, in dialogue with these organizations, to evaluate the impact of the legislative reform on the questions raised and to identify any issues that remain unresolved in law or practice.
   • (b) The Committee requests the Government and the complainant organizations to keep it informed in this regard.
   • (c) The Committee reminds the Government that it may avail itself, if it so wishes, of ILO technical assistance in the framework of the evaluation process of national law and practice.