Rapport définitif - Rapport No. 383, Octobre 2017

Cas no 3163 (Mexique) - Date de la plainte: 16-AVR. -15 - Clos

Allegations: The complainant organization alleges the refusal of a local conciliation and arbitration board to register a change in its executive board

1. 464. The complaint is contained in two communications from the United Trade Union of Workers of the Water Supply and Sewerage Network (SUTSAPA) dated 16 April and 22 October 2015.
2. 465. The Government sent its reply in two communications dated 26 May and 25 October 2016.
3. 466. Mexico has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

A. The complainant’s allegations

1. 467. In a communication dated 26 May 2015, the complainant organization states that, on 1 October 2013, Mr Raúl Contreras Ramírez, Mr Luis Aguilar Domínguez and Mr Miguel Avitia Sánchez, in their capacity as the workers’ representatives, convened an extraordinary general assembly of SUTSAPA on 5 October 2013, which was attended by more than 51 per cent of the trade union’s members. The complainant alleges that, in exercising its legitimate right to freedom of association, it decided during the extraordinary general assembly to remove the union’s entire leadership because a number of its officers had allegedly sexually harassed union members and contravened its statutes.
2. 468. The complainant states that, during the extraordinary general assembly, Mr Adin Corzo Hernández was elected General Secretary of SUTSAPA and that, on 10 October 2013, the new executive board filed an application with the Chairperson of the Local Conciliation and Arbitration Board (JLCA) in the State of Chiapas to “take note of” (register) the change in officers, in accordance with article 377 of the Federal Labour Act. On 18 October 2013, the members of the new executive board met with the managing director of the enterprise to inform him of the change in executive board and request him to cease all communications with the former executive board.
3. 469. The complainant reports that, on 5 December 2013, the new General Secretary of SUTSAPA requested the JLCA to register the change in executive board with immediate effect. It further states that, given the failure of the JLCA to do so, the executive board asked the Governor of the State of Chiapas to intervene. The Governor, in a letter dated 16 January 2014, informed the new members of the union’s executive board that their request had been forwarded to the Ministry of Labour of the State of Chiapas and that it would be dealt with as soon as possible.
4. 470. The complainant adds that, on 9 December 2013, the Chairperson of the JLCA refused to register the change in executive board because, under article 365, section IV, of the Federal Labour Act, the union must provide a certified copy of the minutes of the assembly at which the executive board was elected – certified by the general secretary, organization secretary and minutes secretary – and that the committee making the application failed to provide this. It was also refused on the grounds that the agenda included in the convocation to the extraordinary general assembly made no mention of the change in executive board, which is required under article 19 of the union’s statutes, and that the procedure set forth in article 34 of the statutes was not followed.
5. 471. With regard to the refusal to register the change in executive board, the complainant states that: (i) in refusing to register the change in executive board on the grounds of non-compliance with the union’s statutes, the JLCA exceeded its authority, since, according to the Committee on Freedom of Association’s guidelines, the registration of trade union representatives should take place automatically when reported by the trade union, and should be contested only at the request of the members of the trade union in question, hence it was not up to the JLCA to verify the own-initiative procedure; (ii) the trade union followed the procedure set forth in the statutes, given that, according to article 11, the removal and resignation from trade union office should be dealt with in extraordinary general assemblies; (iii) in a change of officers on 28 January 2012, despite the fact that this change was made in an ordinary general assembly and that on that occasion there was a failure to comply with the statutes, the JLCA did not oppose the appointments; (iv) according to articles 9 and 17 of the statutes, the general assembly is the trade union’s highest decision-making body and enjoys trade union autonomy, hence any decision adopted during ordinary and extraordinary general assemblies is irrevocable and the general assembly may disregard the provisions of the statutes; (v) the JLCA was wrong to refuse the application for registration on the grounds that uncertified copies were attached to the application, instead of certified copies, and to claim that these were of no value as evidence, since, according to the criteria established by the Committee on Freedom of Association, the Chairperson of the JLCA only has the authority to register, and not to verify evidence; and (vi) the application for registration was filed with the JLCA on 10 October 2013 and this authority refused the application on 9 December 2013, meaning that the JLCA took more than 60 days to issue its decision and the principle of positiva ficta (automatic approval) therefore applied.
6. 472. The complainant also states that the officers elected lodged an indirect appeal under the amparo procedure with the Sixth District Court in the State of Chiapas against the decision issued by the Chairperson of the JLCA on 9 December 2013. The appeal was rejected on 23 September 2014, as registration of the application for the change in executive board was contingent on electoral procedures being verified. Thus, the relevant authority had to verify whether the procedure followed in the election of the new executive board had complied with the formal requirements of the union’s own statutes.
7. 473. The complainant considers that the 2011 constitutional reform with respect to human rights and the Supreme Court of Justice’s decision in the Rosendo Radilla Pacheco case established the requirement to recognize the human rights defined by international sources of law as part of the Mexican constitutional system. Thus, in making the registration contingent on complying with the formal requirements of the statutes, the judge had made it a requirement to take into account the Committee on Freedom of Association’s criteria, which would not otherwise have been applicable.
8. 474. The complainant adds that an application for a judicial review of the amparo decision handed down by the Sixth Court was filed with the Third Collegiate Court, Twentieth Circuit. On 12 March 2015, the appeal was rejected on the grounds that it was not possible to grant automatic recognition or registration to anyone requesting it and producing any form of minutes, since checks must first be carried out to ensure that any actions taken followed the procedures set forth in the union’s statutes and the Federal Labour Act. The court also noted that, in order for the authority to register automatically the changes requested after verification that requirements had been met, trade unions must attach certified copies in duplicate of the minutes noting the changes in trade union executive boards. This would enable the authority to check the procedure followed and outcome recorded in the minutes against the rules freely adopted in the statutes, in order to ascertain whether there had been compliance with those statutes. Moreover, the vote and its outcome must adhere to the terms of the statutes freely formulated by the members. In this respect, the complainant once again states that the registration of trade union executive boards should take place automatically and that the JLCA, having refused to register the changes, and the two courts, having upheld the refusal, obstructed and limited the right to trade union activity in contravention of Article 3 of Convention No. 87.
9. 475. Lastly, the complainant alleges the deterioration in the conditions of work of a number of union officials elected during the extraordinary general assembly of 5 October 2013, in violation of their trade union immunity. In this connection, the complainant states that: (i) Mr Jorge Alejandro Reyes López, sports secretary, after working the night shift for five years, was transferred to the morning shift, resulting in him receiving a wage reduction; (ii) Ms Esperanza Melgar Cruz, finance, statistics and budget secretary, was transferred to another branch; and (iii) Mr Apolinar Jonapa Morales, press and media secretary, was transferred both to another branch and to another shift.
10. 476. The complainant requests the Committee to ensure recognition of the right of workers to freely elect their own representatives, which requires changes in executive boards to be registered immediately. It also calls for a thorough investigation to be ordered into the deterioration in the conditions of work of the union officials mentioned above.

B. The Government’s reply

1. 477. In the communication received on 2 November 2016, the Government conveys the information provided by the JLCA. In this regard, it states that, on 11 September 2015, Mr Jorge Iván Domínguez Molina, in his capacity as SUTSAPA general secretary, submitted a letter to the JLCA requesting the registration of a new executive board elected by majority vote in the extraordinary general assembly held on 29 August 2015.
2. 478. With respect to the registration, it further states that, on 18 September 2015, the JLCA announced its agreement to the application for registration of the change in executive board dated 29 August 2015, once the applicants had met the requirements set out in articles 359 and 377, section II of the Federal Labour Act, as well as the procedures established in articles 9 and 19 of the union’s statutes and Article 3 of Convention No. 87. It also provides a list of the new executive board, which will hold office from 29 August 2015 to 28 August 2018.
3. 479. With regard to the complaint before the Committee, the Government considers that there has been no violation of SUTSAPA’s right to freedom of association. The Government therefore requests the Committee to take note of the information and to close the case, considering that it does not call for further detailed examination.

C. The Committee’s conclusions

1. 480. The Committee notes that in this case the complainant alleges, on the one hand, the refusal by the JLCA to register the change in the SUTSAPA executive board, in a decision dated 9 December 2013, and, on the other hand, the deterioration in the conditions of work of three members of the executive board who were elected on that occasion. These actions contravene the principles of freedom of association.
2. 481. With respect first to the JLCA’s refusal to register the change in executive board, owing to the failure to provide a certified copy of the minutes of the assembly as required under the Federal Labour Act and to follow the procedures set forth in SUTSAPA’s statutes, the Committee notes that the complainant states specifically that: (i) the JLCA had exceeded its authority, given that the registration of officers must take place automatically, and hence it was not up to the board either to verify compliance with the union’s statutes or to ascertain whether the copies of the minutes of the assembly provided were uncertified or certified; (ii) in accordance with SUTSAPA’s statutes, the removal from trade union office should be dealt with in an extraordinary general assembly, and (iii) according to the statutes, the general assembly enjoys full trade union autonomy and can therefore disregard the formal aspects of the statutes.
3. 482. The Committee, while noting the information provided with respect to the JLCA’s registration of the new SUTSAPA executive board elected during the extraordinary general assembly in 2015, regrets that the Government has failed to provide its observations on the JLCA’s decision of 9 December 2013 refusing to register the change in executive board.
4. 483. The Committee further notes that, according to the information provided by the complainant, the JLCA’s decision refusing to register the change in officers was challenged before the Sixth District Court in Chiapas, which rejected the application for amparo, and that an application for a judicial review was filed with the Third Collegiate Court, Twentieth Circuit, which upheld the decision to refuse registration of the change in executive board.
5. 484. In consideration of the above factors, the Committee notes that the executive board elected on 5 October 2013 was not registered by the JLCA, owing to the failure, on the one hand, to provide a certified copy of the minutes, as required under article 365, section IV of the Federal Labour Act, and, on the other hand, to comply with articles 19 and 31 of SUTSAPA’s statutes, in particular the failure to include the election of the new executive board on the agenda of the extraordinary general assembly.
6. 485. With regard to the JLCA’s insistence on compliance with the legal requirement to provide certified copies of the minutes of the extraordinary general assembly at which the change in officers was made and in accordance with the procedures established in the trade union bylaws, the Committee emphasizes that free election of trade union officials is not at variance with the fulfilment of certain formal requirements for the registration of trade union organizations and their officers, provided that such requirements are reasonable, and that, if the body responsible for registering the change in executive board considers that there are irregularities in the documentation submitted, an opportunity should be provided for the organization to rectify the irregularities in question [regarding this last point, see previous cases: 334th Report, Case No. 2282, para. 638; 337th Report, Case No. 2346, para. 1056; and 340th Report, Case No. 2393, para. 1059]. The Committee notes that a new executive board was registered in 2015, therefore it will not pursue the examination of this allegation.
7. 486. As for the issue raised by the JLCA and the courts concerning the complainant organization’s non-compliance with the statutes, the Committee considers it important to recall that no violation of the principles of freedom of association is involved where the legislation contains certain rules intended to promote democratic principles within trade union organizations or to ensure that the electoral procedure is conducted in a normal manner and with due respect for the rights of members in order to avoid any dispute as to the election results [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 399]. The Committee notes that, in this case, the failure to include the vote on the executive board on the agenda of the extraordinary general assembly, in addition to negatively affecting the governance of the trade union, could have had an effect on the level of participation of members in that assembly, and consequently on their final decision. Given these circumstances and, as the aim of monitoring compliance with the union’s statutes appeared to be to ensure the democratic functioning of the union, the Committee considers that no violations of the principles of freedom of association are involved, and therefore will not pursue the examination of this allegation.
8. 487. With regard to the allegations related to a deterioration in working conditions, in particular transfers and the unilateral change in the work schedules of three union representatives elected on 5 October 2013the Committee trusts that the Government will ensure that these workers will not be disadvantaged for trade unions activities.

The Committee’s recommendation

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