Effect given to the recommendations of the committee and the Governing Body - Report No 329, November 2002

Case No 2136 (Mexico) - Complaint date: 14-JUN-01 - Closed

Effect given to the recommendations of the Committee and the Governing Body

1. 86. The Committee last examined this case at its June 2002 meeting [see 328th Report, paras. 491-529]. On that occasion the Committee requested the Government to keep it informed of the rulings issued in the proceedings initiated by a group of workers who had been dismissed for supporting the application by ASPA to conclude a collective labour agreement and, if it transpired that the dismissals had been due to legitimate trade union activity, to ensure that the workers concerned were reinstated in their posts, without loss of pay.
2. 87. In a communication dated 24 June 2002, the Trade Union Association of Airline Pilots of Mexico (ASPA) stated that the Consorcio Aviaxsa S.A. de C.V. (AVIACSA) company was continuing to disregard the right of airline pilots to negotiate collectively. It emphasizes that originally the collective agreement signed between the company and the Trade Union of Workers in Aeronautics, Similar and Related Industries of the Mexican Republic (STIAS) did not include airline pilots and that they were subsequently included without being consulted. The complainant organization reiterates that it enjoys a majority of votes from the pilots and as such it was appropriate for it to negotiate collectively, in accordance with the provisions of articles 388 and 389 of the Federal Labour Law. The complainant organization adds that, with a view to deciding definitively who enjoyed the majority, the Federal Council for Conciliation and Arbitration ordered, on 27 February 2002, that a new ballot should be held involving only the AVIACSA pilots. That ballot took place on 13 March 2002. On that occasion, of 111 pilots who participated, 65 voted for ASPA and 46 for STIAS, but in the course of the ballot, the ballot list from Tijuana was stolen, and this was reported to the Attorney-General’s Office of the Republic. Consequently, the Federal Council for Conciliation and Arbitration ordered that the pilots who participated in the ballot in Tijuana should attend a hearing on 1 April 2002 in order to confirm their votes. On that occasion, the complainant organization reports that various individuals hired by AVIACSA assaulted the members of ASPA, and this was reported to the criminal court.
3. 88. In addition, the complainant organization alleges that the collective labour agreement between Consorcio Aviaxsa S.A. de C.V. (AVIACSA) and STIAS contains various clauses which violate the freedom of association. Clause 4 of the agreement states that if all or some of the workers of a particular speciality separate from or leave the union, they will be replaced by workers who are members of the union.
4. 89. Finally, the complainant organization states that the company again dismissed more pilots in April and May 2002 for voting in favour of ASPA at the last ballot on 13 March 2002.
5. 90. In a communication dated 11 September 2002, the Government states that, in its last examination of the case, the Committee determined that, since the Government of Mexico had demonstrated that the most representative trade union in the AVIACSA company was the Trade Union of Workers in Aeronautics, Similar and Related Industries of the Mexican Republic (STIAS) (which signed the collective agreement in force), it does not appear that the principles of collective bargaining were violated by denying ASPA the right to negotiate a specific collective agreement for the pilots’ group. The Committee emphasized that the system of collective bargaining with exclusive rights for the most representative trade union is compatible with the principle of freedom of association. This is a matter to be decided on the basis of national law and practice.
6. 91. With respect to the contents of the collective labour agreement concluded between AVIACSA and the Trade Union of Workers in Aeronautics, Similar and Related Industries of the Mexican Republic (STIAS), the Government of Mexico states that it unfailingly respects the effective recognition of the right to collective bargaining, in accordance with articles 386 to 403 of the Federal Labour Law.
7. 92. Such collective agreements must also cover the minimum labour standards laid down in section XXVII of article 123, paragraph A of the Political Constitution of the United Mexican States and article 56 of the Federal Labour Law states that under no circumstances shall conditions of labour be inferior to those laid down in that law and shall be proportionate to the importance of the services in question and shall be the same for the same kinds of work.
8. 93. The Government adds that, in any case, any worker who considers his rights to be violated, is entitled to take action to assert them according to the terms of the Federal Labour Law itself.
9. 94. With regard to ASPA’s assertion that it is incorrect that the ballots were general with the participation of the entire AVIACSA workforce, the Government points out that, since it demonstrated that a trade union with greater representativity existed in the AVIACSA company, it did not appear that the principles of collective bargaining had been violated by denying ASPA the right to negotiate a specific agreement for the pilots’ group. In addition, the Sixth Collegiate Tribunal on Labour of the First Circuit, in the appeal brought by ASPA in case No. DT.17536/2001, ordered solely the AVIACSA pilots to be balloted, making the previous ballot null and void. The Federal Council for Conciliation and Arbitration, pursuant to the ruling of the Collegiate Tribunal, was obliged to comply and complied in full with the order, holding a new ballot on 13 March 2002 exclusively for the pilots. The Collegiate Tribunal, in granting ASPA the right to appeal, did not rule on the substance of the problem. In no part of the ruling was it established that the ballot should be thus conducted because the right to sign the collective labour agreement was in dispute, in relation to that category of workers. What this ruling considered was that the ballot should be held as requested by ASPA, i.e. exclusively for the pilots, on purely procedural grounds.
10. 95. As regards the theft of the voting list in Tijuana, Baja California, the clerk commissioned to conduct the ballot confirmed that the list had been stolen containing the names, votes, forms of identification, signatures and objections from the airline pilots who had participated in the ballot up to 1700 hours on 3 March 2002. In accordance with article 782 of the Federal Labour Law, the Council summoned the pilots who had participated in the ballot in this entity to appear on 1, 2, 3, 4 and 5 April 2002 and cast their votes freely before the agreements secretary. This was necessary in order to identify who had voted and for which union, so as to ensure legal certainty and avoid leaving any of the parties defenceless.
11. 96. On 1 April 2002 acts of violence occurred involving ASPA, AVIACSA and the Trade Union of Workers in Aeronautics, Similar and Related Industries of the Mexican Republic (STIAS), demonstrating clear irresponsibility and lack of respect towards the authority and those subject to it. The agreements secretaries Pedro Antonio Ruiz and Rodríguez and Enrique Sebastián Fonseca Aguilar noted these occurrences in a formal record. Subsequently, Special Council No. 2 ordered, in an official document, that the record and a certified copy of the aforementioned agreement be handed over to the Federal Public Prosecutor’s Office and warned the parties to conduct themselves with due respect and consideration in the hearings or proceedings concerned, cautioning them that disciplinary measures set forth in the Federal Labour Law would otherwise be imposed.
12. 97. As regards the alleged unfair dismissal of pilots who voted for ASPA in the ballot of 13 March 2002, it should be pointed out that they can take legal action for unfair dismissal so that the Federal Council for Conciliation and Arbitration can determine whether they were unfairly dismissed on account of their trade union activity.
13. 98. In conclusion, the Government affirms that during the proceedings concerning the right to sign the AVIACSA collective agreement, the parties were able to exercise their rights in accordance with the law and take action against those resolutions which they considered affected them. The authorities acted in accordance with Convention No. 87.
14. 99. The Committee notes the information from the complainant organization and the Government’s observations. As regards the negotiation of a collective agreement by the airline pilots, in its previous examination of the case the Committee concluded that “as the Government has demonstrated that the most representative trade union at AVIACSA is STIAS (the holder of the collective agreement), it does not appear that the principles of collective bargaining have been violated by denying the complainant organization the right to negotiate a specific collective agreement for the pilots. The Committee notes that systems of collective bargaining with exclusive rights for the most representative trade union and those where it is possible for a number of collective agreements to be concluded by a number of trade unions within a company are both compatible with the principles of freedom of association. This is a matter to be decided on the basis of national legislation and practice” [see 328th Report, para. 526]. The Committee notes the communication from the complainant organization on the content and circumstances in which the collective agreement in force was concluded, and its explanations which reveal that national law grants the possibility of a specific collective agreement for a particular category of workers, as is the case with the pilots, and notes that in the last ballot held on 13 March 2002, in accordance with the ruling of the Sixth Collegiate Tribunal on Labour of the First Circuit, in which only the airline pilots were to participate, ASPA obtained the majority of the votes. The Committee requests the Government to take measures to promote discussions between the parties with a view to considering the possibility of concluding a specific collective agreement for the pilots; otherwise it should ensure that the pilots’ trade union organizations can participate in the negotiation of the enterprise collective agreement.
15. 100. As regards the acts of violence which took place during the hearing of 1 April, which was held because of the theft of the Tijuana voting list in order to identify who the workers had voted for, the Committee notes the Government’s information that the Public Prosecutor’s Office cautioned the parties and warned them of disciplinary sanctions and requests it to keep it informed of any judicial decision in this respect which may remain pending.
16. 101. As regards the dismissals of the ASPA members referred to by the Committee in its previous examination of the case, the Committee observes that the judicial proceedings are still pending. The Committee requests the Government to take the appropriate measures to ensure that those proceedings are concluded as quickly as possible and, if the anti-union nature thereof is proven, that the dismissed workers are reinstated immediately, without loss of pay. In addition, the Committee notes with concern the allegations relating to the dismissal of new workers for voting in favour of the ASPA trade union organization. The Committee notes the high number of dismissals in the context of a collective bargaining dispute and that the Government merely points out the existence of the possibility of taking legal action. The Committee recalls that no person should be dismissed or prejudiced in his or her employment by reason of trade union membership or legitimate trade union activities [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 696]. The Committee requests the Government to ensure that the relevant inquiries are conducted immediately and, if the anti-union nature of these latest dismissals is proven, to consider the possibility of ensuring the reinstatement of these workers as soon as possible. The Committee requests the Government to keep it informed in this respect.
17. 102. As regards the allegations concerning the clauses of the collective agreement, the Committee notes the Government’s information that the guidelines to be followed by collective agreements are established in law and that any worker who considers his rights to have been violated may take legal action. The Committee has emphasized on a previous occasion that “problems related to union security clauses should be resolved at the national level, in conformity with national practice and the industrial relations system in each country. In other words, both situations where union security clauses are authorized and those where these are prohibited can be considered to be in conformity with ILO principles and standards on freedom of association” [see Digest, op. cit., para. 323].