Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Mexico (Ratification: 1950)

The Committee notes the observations of the Confederation of Industrial Chambers of the United States of Mexico (CONCAMIN) and the International Organisation of Employers (IOE), received on 26 July 2016, on issues covered by the Committee’s comments. The Committee also notes the observations of the IOE, received on 1 September 2016 which are of a general nature.

The Committee notes the observations of the International Trade Union Confederation (ITUC), received on 31 August 2016, and of IndustriALL Global Union (IndustriALL), received on 1 September 2016. The Committee requests the Government to provide its comments on these observations.

The Committee notes the information provided by the Government in relation to the observations made in previous years by IndustriALL, the ITUC, the IOE, the National Trade Union of Workers in the Iron, Steel Industry, Derivatives Similar and Related Products of the Mexican Republic and the National Confederation of Workers (UNT).

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 105th Session, May–June 2016)

The Committee notes the discussion on the application of the Convention held in the Committee on the Application of Standards of the Conference in June 2016, and its conclusions requesting the Government to: (i) continue to fulfil its existing legal obligation to publish the registration of trade unions in the local boards in the 31 states in the country; (ii) engage in social dialogue with a view to enacting the President’s proposed reforms to the Constitution and the Federal Labour Act as soon as possible and reinforce social dialogue with all workers’ and employers’ organizations, including through any additional complementary legislation; and (iii) ensure that trade unions are able to exercise their right to freedom of association in practice.

Civil liberties and trade union rights. With reference to the allegations of the ITUC and IndustriALL of 2015 relating to acts of violence against trade unionists, the Committee notes the Government’s indications on the action taken with respect to several of these allegations, including the progress made in investigations and the results of the corresponding judicial procedures. The Committee notes that, as the Government itself recognizes, some of the allegations are the subject of cases before the Committee on Freedom of Association, and it refers to the recommendations made in those cases. The Committee also notes the request by the Government to the organizations concerned to provide additional specific and detailed information in relation to the allegations of the deaths of four members of the National Union of Mining, Metallurgy, Steel and Allied Workers, and attacks on the trade union action of miners, the detentions of 14 agricultural workers in March 2015 and other allegations of violence against trade unionists. Finally, the Committee notes with concern that the ITUC and IndustriALL report new acts of violence related to trade union action, including an allegation of nine deaths and over 100 persons injured, as well as the arrest of nine trade unionists, in the context of a collective dispute in the education sector in Oaxaca. The Committee requests the ITUC and IndustriALL to provide the most detailed information possible concerning their allegations of violations against civil liberties and trade union rights, as well as the circumstances, and requests the Government, based on the information available and the additional elements provided by these organizations, to provide its comments on these matters.

Article 2 of the Convention. Representativity of trade unions and protection contracts. In its previous comment, the Committee requested the Government, in consultation with the social partners and in accordance with the conclusions of the Committee on the Application of Standards in 2015, to take all necessary legislative and practical measures without delay to find effective solutions to the obstacles to the exercise of freedom of association posed by the so-called protection trade unions and protection contracts, including reforms to prevent the registration of trade unions which cannot demonstrate the support of the majority of the workers that they claim to represent. The Committee notes the Government’s indication that on 21 October 2015 it requested in writing the views of the main employers’ organizations, (namely CONCAMIN, the Employers’ Confederation of the Republic of Mexico (COPARMEX), the Employers’ Coordinating Council (CCE), the National Chamber of the Transformation Industry (CNACINTRA) and the Confederation of National Chambers of Commerce, Services and Tourism (CONCANACO)), and the views of the main organizations of workers (namely the Confederation of Mexican Workers (CTN), the Revolutionary Confederation of Workers and Rural Workers (CROC) and the Regional Mexican Workers’ Confederation (CROM), the UNT and the Labour Congress) with a view to exploring the need for reforms to strengthen the legislative framework governing freedom of association and that, with the exception of the CROC (which replied on 28 October 2015), comments have not been received from any of the other organizations. The Government specifies that, once the possible amendments have been identified together with the social partners, ILO advice will be required to make progress in the implementation of the labour reform. The Committee also notes the Government’s indication that in the meantime it has taken measures to deal with the issue of protection trade unions and protection contracts through coordination mechanisms afforded by: (i) the National Conference of Labour Secretariats (CONASETRA), which has met on various occasions to discuss proposals to reinforce labour justice and strengthen the free exercise of individual and collective workers’ rights; (ii) the National Conference of Conciliation and Arbitration Boards (CONAJUNTAS), which is endeavouring to harmonize agreements and legal criteria to strengthen tripartism and coordination between labour authorities, and acts as a forum for debate for the revision of the labour justice system; and (iii) the conclusion of coordination agreements between the Federal Conciliation and Arbitration Board and local boards, with the objective of seeking greater coherence and consolidating prompt and expeditious labour justice. The Government adds that, with a view to intensifying measures against practices of simulation that are contrary to freedom of association, the Federal Conciliation and Arbitration Board adopted a uniform criterion for election procedures and vote counting to determine the representative nature of collective agreements, based on Jurisprudential Opinion No. 150/2008 of the Supreme Court of Justice. This criterion sets out measures, including: (i) identifying a reliable, complete and updated list of all workers entitled to vote; (ii) ensuring that the premises in which the count is held offer the conditions for its rapid, orderly and peaceful completion; (iii) ensuring the necessary documentation and materials so that the ballot is secure, free and secret; (iv) ensuring the full identification of workers entitled to attend the count; (v) calculating the final totals transparently and in public; and (vi) in the event of objections being raised, holding a hearing without delay and issuing the correct solution in law. The Government also reports the adoption in February 2016 of a labour inspection protocol on the freedom to conclude collective agreements, under the terms of which inspectors may have access to workplaces and interview workers to ascertain that they know their trade unions and the collective agreements applicable to them (the Government adds that, since its adoption, 98 inspections have been carried covering free collective bargaining).

The Government also emphasizes that the President of the Republic, based on the results of a broad study on rendering justice, including labour justice and following a process of dialogue with the various institutions concerned, including the CONAJUNTAS, forwarded to the Congress of the Union on 28 April 2016 an ambitious package of reform initiatives to modernize the labour justice system. The reform measures include proposed amendments to the Political Constitution and the Federal Labour Act, including the revision of the procedures for the conclusion, deposit and registration of collective agreements aimed at ensuring full respect for trade union independence and the right of association. The Committee notes with interest that these proposed reforms include initiatives to ensure trade union representativity in the context of the registration of collective agreements, thereby addressing the problem of protection contracts through such measures as verification of the existence of a work centre prior to the registration of a collective agreement, the dissemination of the bylaws of trade unions and of collective agreements to workers and verification of the approval of collective agreements by workers. The Committee notes that, in relation to the proposed reforms: (i) the ITUC indicates that, although they could be improved in certain aspects, they address fundamental criticisms that have been made by independent trade unions and the global trade union movement for over two decades; and (ii) IndustriALL indicates that the proposals could begin to offer a remedy to the deeply engrained structural obstacles to freedom of association in Mexico. In this regard, the Committee notes that in November 2016, the Plenary of the Chamber of Deputies approved the Bill for the constitutional reform, and forwarded it to the Congresses of the respective states for approval.

Taking due note of the measures indicated by the Government, and noting with particular interest the proposed reform of the Federal Labour Act, and the Government’s intention to request ILO advice on the implementation of the labour reform, the Committee requests the Government, in consultation with the social partners, to continue adopting the necessary legislative and practical measures to find solutions to the problems arising out of the issue of protection trade unions and protection contracts, including in relation to the registration of trade unions. The Committee requests the Government to keep it informed of any developments in this regard.

Conciliation and arbitration boards. Constitutional reform. In its previous comment, the Committee noted the observations of workers’ organizations alleging that the operation of conciliation and arbitration boards impedes the exercise of freedom of association, and the Committee encouraged the Government to continue examining, through constructive dialogue with the social partners, the issues raised by the trade unions in relation to the exercise of the trade union rights set out in the Convention. The Committee notes the Government’s indication that, as part of the reform process of the labour justice system referred to above, and the package of proposals submitted to Congress by the President of the Republic, which includes the reform of the Political Constitution and the Federal Labour Act, the Government has proposed a change of paradigm to adapt the labour justice system to the new era. The Committee welcomes and notes with interest that, among the principal changes, the reform envisages that labour justice will be rendered by federal or local bodies of the judicial authorities (to which the functions fulfilled by the boards would be transferred), that conciliation procedures would be more flexible and effective (with the proposal of the establishment of specialized and impartial conciliation centres) and that the federal conciliation body would be a decentralized agency that would register all collective labour agreements and trade unions. The Committee notes with interest the proposed reforms of the labour justice system and requests the Government to keep it informed of any developments in this regard, while reiterating that ILO technical assistance remains available.

Publication of the registration of trade unions. The Committee notes that the Committee on the Application of Standards in June 2016 requested the Government to continue to fulfil its existing legal obligation to publish the registration of trade unions in the local boards in the 31 states of the country. The Committee notes that the Government reaffirms the will of the State for conciliation and arbitration boards to give effect to section 365bis of the Federal Labour Act, thereby reinforcing the Government’s commitment not to encourage or offer incentives for so-called protection contracts. In this regard, the Government indicates that: (i) it is continuing to take action to promote the obligations of local labour authorities, particularly within the framework of the CONASETRA, in accordance with federal autonomy and in recognition of the technical complications in terms of time and resources involved in digitalizing a system containing a considerable volume of information; (ii) it has received the following information from 28 states (which it already provided to the Committee on the Application of Standards in June 2016): the boards in 11 states have published the required information on their official web pages, while eight others are at a very advanced stage of this process, two are engaged in taking the necessary measures to offer the required access, six indicate that the information is available to the public when so requested in their archives or in local boards, and one state board indicated that, due to budgetary issues, it was not possible to grant access to such information; (iii) the Secretariat for Labour and Social Welfare and the Federal Conciliation and Arbitration Board have over the past two years established thousands of registers of trade union groups and collective agreements that are accessible through its web pages. The Committee also notes that IndustriALL alleges that the requirement to publish the registration of trade unions and collective contracts is not being fulfilled in most states and recalls that during the Committee on the Application of Standards in June 2016 the workers’ organizations rebutted the Government’s statement that this requirement was being met by the boards of 20 states (by demonstrating that in many of them they were not operational, not accessible or lacked information), and it adds that only six bodies publish a list of registered unions (but not the corresponding documents). Finally, the Committee observes that the constitutional reform referred to above provides for the modification of the system for the registration of trade unions, with the creation of a federal public body responsible for the registration of trade unions and collective agreements. The Committee requests the Government to continue providing information on compliance with the legal requirement for conciliation and arbitration boards to publish the registration and by-laws of trade unions, and on any impact that the new constitutional reform may have on the procedure for the registration of trade unions, including the publication of the registration of trade unions and their statutes.

Articles 2 and 3. Possibility of trade union pluralism in state bodies and the possibility to re-elect trade union leaders. The Committee recalls that for years it has been commenting on the following provisions: (i) the prohibition of the coexistence of two or more unions in the same state body (sections 68, 71, 72 and 73 of the Federal Act on State Employees (LFTSE)); (ii) the prohibition on trade unionists from leaving the union of which they have become members (section 69 of the LFTSE); (iii) the prohibition on unions of public servants from joining trade union organizations of workers or rural workers (section 79 of the LFTSE); (iv) the reference to the Federation of Unions of Workers in the Service of the State (FSTSE) as the single central trade union federation recognized by the State (section 84 of the LFTSE); (v) the legislative declaration establishing the trade union monopoly of the National Federation of Banking Unions (FENASIB) (section 23 of the Act issued under Article 123B(XIIIbis) of the Constitution); and (vi) the prohibition of officer re-election in trade unions (section 75 of the LFTSE). In its previous comment, the Committee noted the Government’s indication that, in accordance with the case law of the Supreme Court of Justice, and with practice and custom, these legislative restrictions on the freedom of association of public servants are not applied, that the provisions in question are not operative and that the legislative authorities were making efforts to update the LFTSE through legislative initiatives to amend several of the provisions concerned. The Committee notes the Government’s indication in its latest report that the State will continue to further efforts to update the LFTSE. The Committee once again requests the Government to take the necessary measures to amend the restrictive provisions referred to above in order to bring them into conformity with national case law and the Convention. The Committee requests the Government to provide information on the legislative initiatives referred to and any developments in this regard.

Article 3. Right to elect trade union representatives in full freedom. Prohibition on foreign nationals becoming members of trade union executive bodies (section 372(II) of the Federal Labour Act). In its previous comment, the Committee noted the Government’s indications that: (i) section 372(II) of the Federal Labour Act, which prohibits foreign nationals from becoming members of trade union executive bodies, was tacitly repealed by the amendment to section 2 of the Act, which prohibits all discrimination based on ethnic or national origin; and (ii) the registration authorities do not require trade union leaders to have Mexican nationality, and this prohibition is not applied in practice. The Committee welcomes the fact, as indicated by the Government to the Committee on the Application of Standards in 2016, that certain trade union bylaws explicitly recognize the possibility for foreign nationals to participate in their executive bodies. The Committee also notes the Government’s indication in its latest report that, as it noted in relation to the process of considering further legislative amendments to the 2012 labour reform, since October 2015 the Government has been awaiting the opinions of the social partners, in the context of which this matter can be assessed. Recalling the need to ensure the conformity of the legislative provisions with the Convention, even if they are in abeyance or are not applied in practice, the Committee requests the Government to take the necessary measures to amend section 372(II) of the Federal Labour Act with a view to making explicit the tacit repeal of this restriction.

The Committee is raising other matters in a request addressed directly to the Government.