CMNT_TITLE

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Mexico (RATIFICATION: 1961)

Other comments on C111

Observation

Direct Request

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The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government, as well as on the basis of the information at its disposal in 2019. The Committee notes the observations of the Autonomous Confederation of Workers and Employees of Mexico (CATEM), the International Confederation of Workers (CIT) and the Regional Confederation of Mexican Workers (CROM), forwarded with the Government’s report. Finally, the Committee also notes the observations of the Independent Trade Union of Men and Women Workers of the Government of the State of San Luis de Potosí (SITTGE), received on 6 December 2016, in addition to those sent in 2015 and September 2016.

Article 1(1)(a) of the Convention. Grounds of discrimination in the legislation. In its previous comments, the Committee observed that the Federal Labour Act of 1 April 1970 did not explicitly cover discrimination on grounds of race, colour, national extraction or political opinion. The Committee notes the Government’s indication that: (1) section 1 of the Federal Act to prevent and eliminate discrimination (LFED) of 11 June 2003 includes the following grounds of discrimination: “(…) ethnic or national origin, skin colour, culture, (…) physical appearance, (…) opinion, (…) political identity or membership, (…)”; and (2) the criterion of “ethnic origin” is considered to include race and being an indigenous person; the criterion of “national extraction” is considered to include foreign nationality; the criterion of “physical appearance” is considered to include colour; and the criterion of “opinion” is considered to include “political views”.

Discrimination on the basis of political opinion and social origin. The Committee notes that the SITTGE has been alleging acts of discrimination based on political opinion and social origin in the State of San Luis de Potosí against its members working in the security sector, as they were treated as “trusted workers” in comparison to other workers who carry out the same administrative functions but belong to unions (among other acts, it alleges differences of treatment, including the imposition of extensive working hours, sudden changes in times when work finishes, submission to monitoring and confidence tests, harassment to perform activities other than those related to the worker’s job and disciplinary procedures when the workers concerned defend their labour rights, and dismissal and transfer procedures). The SITTGE also claims that the prejudice to its members constitutes discrimination on political grounds and alleges that membership of the SITTGE, as opposed to other unions, to be the assumption of a political opinion. The Committee notes that, in its response to the SITTGE’s observations, the Government indicates that the persons concerned have the status of members of the security and custody forces, even if they do not carry out operational functions, and that these posts are granted with special investiture, as they are public servants carrying out acts of authority. The Government adds that within the security and custody personnel there are administrative categories with training in police matters, and that, being at the service of the general interest, their work cannot be limited to a specific and reduced working day as is the case with union-based personnel. Thus, the Government states that there is no similarity in between the functions of basic personnel and security and custody personnel that could justify discrimination. Likewise, the Government indicates that the two persons affected were removed from their posts, and that one of them went to court where different bodies rejected the claim.

Discrimination on the basis of race and colour. The Committee notes with interest that the Decree of 9 August 2019 “adding part C to Article 20 of the Political Constitution of the United States of Mexico” has amended the Political Constitution to recognize Afro-Mexican peoples and communities among the pluri-cultural composition of the nation. The Committee also notes: (1) the Government’s indication that the Plan of Action of Mexico in relation to the International Decade for People of African Descent (2015–24) has been prepared; (2) in 2019, the National Institute for Indigenous Peoples (INPI) was created; and (3) the National Indigenous Peoples Programme 2018–24 was approved. While welcoming this progress, the Committee also observes that, in its concluding observations, the United Nations Committee on the Elimination of Racial Discrimination (CERD) noted with concern that Afro-Mexican people and communities and indigenous peoples continue to face discrimination, high levels of marginalization and social exclusion (CERD/C/MEX/CO/18-21, 11 September 2019, paragraphs 16 and 17). The Committee requests the Government to continue to make every effort to address discrimination against Afro-Mexican peoples and communities and indigenous communities, including through the Plan of Action for Mexico in relation to the International Decade for People of African Descent. The Committee also refers to its comments on the application of the Indigenous and Tribal Peoples Convention, 1989 (No. 169).

General observation of 2018. With regard to the above issues, and in more general terms, the Committee would like to draw the Government’s attention to its general observation on discrimination based on race, colour and national extraction which was adopted in 2018. In the general observation, the Committee notes with concern that discriminatory attitudes and stereotypes based on the race, colour or national extraction of men and women workers continue to hinder their participation in education, vocational training programmes and access to a wider range of employment opportunities, resulting in persisting occupational segregation and lower remuneration received for work of equal value. Furthermore, the Committee considers that it is necessary to adopt a comprehensive and coordinated approach to tackling the obstacles and barriers faced by persons in employment and occupation because of their race, colour or national extraction, and to promote equality of opportunity and treatment for all. Such an approach should include the adoption of interlocking measures aimed at addressing gaps in education, training and skills, providing unbiased vocational guidance, recognizing and validating the qualifications obtained abroad, and valuing and recognizing traditional knowledge and skills that may be relevant both to accessing and advancing in employment and to engaging in an occupation. The Committee also recalls that, in order to be effective, these measures must include concrete steps, such as laws, policies, programmes, mechanisms and participatory processes, remedies designed to address prejudices and stereotypes and to promote mutual understanding and tolerance among all sections of the population.

The Committee draws the Government’s attention to its general observation of 2018 and requests the Government to provide information in response to the questions raised in that observation.

Discrimination on the basis of sex. In its previous comments, the Committee requested the Government to clarify the scope of section 2 of the Federal Labour Act, which provides that substantive equality “presupposes access to the same opportunities, taking into consideration biological, social and cultural differences of women and men.” The Committee notes the Government’s indication in its report that this section applies to all labour relations, but does not clarify whether in practice it allows differences of treatment between men and women workers on grounds of “biological, social and cultural differences of women and men”. The Committee recalls that sex discrimination includes distinctions based on biological characteristics, as well as unequal treatment arising from social constructed roles and responsibilities assigned to a particular sex (gender). The Committee requests the Government to clarify whether differences of treatment between men and women workers are allowed taking into consideration “biological, social and cultural differences of women and men”.

Sexual harassment. The Committee notes the Government’s reference to sections 3 and 994 of the Federal Labour Act among those “establishing the legal concept of sexual harassment”. The Committee observes that: (1) section 3 bis of the Federal Labour Act defines harassment as “the exercise of power in a relationship of the real subordination of the victim with regard to the aggressor in the work context, which takes the form of verbal or physical acts, or both”, and sexual harassment as “a form of violence in which, even if there is no subordination, there is an abusive exercise of power which involves a state of defencelessness and risk for the victim, irrespective of whether it occurs on one or several occasions”; and (2) section 994 of the Federal Labour Act establishes the penalty of a fine “from 250 to 5,000 measurement and updated units [21,750 to 430,000 Mexican pesos] for an employer who engages in any discriminatory act or behaviour in the workplace; [and] who engages in acts of sexual harassment or who tolerates or permits acts of sexual harassment against workers …”. The Committee also: (1) notes with interest the amendments made to the Federal Labour Act by the Decree of 1 May 2019 “amending, adding and repealing various provisions of the Federal Labour Act, the Basic Act on the Judicial Authorities of the Federation, the Federal Act on the Office of the Public Defender, the Act respecting the Institute of the National Housing Fund for Workers and the Social Security Act in relation to labour justice, freedom of association and collective bargaining”, establishing the requirement for employers to “implement, in agreement with the workers, a protocol to prevent gender discrimination and to address cases of violence and sexual harassment …” (section 132 of the Federal Labour Act); and (2) observes that the Government, in its supplementary information, refers to action to promote the adoption of a Model Protocol to prevent, address and eradicate violence at work and the publication of the Protocol to identify, assist and support users of the Office of the Federal Labour Prosecutor (PROFEDET) in cases of sexual/labour harassment. The Committee requests the Government to provide information on the application in practice of the legislation and protocols against workplace harassment (number of complaints made and cases detected, number of penalties imposed and compensation, information on the decisions of the relevant bodies, the effectiveness of the protocols adopted, etc.).

Discrimination on the basis of pregnancy. In its previous comments, the Committee requested the Government to provide information on the application in practice of sections 56 and 133 of the Federal Labour Act, which prohibit employers from requiring certificates that women are not pregnant to obtain or keep a job, or for promotion, and from dismissing or from directly or indirectly forcing a woman to resign because of pregnancy. In its report, the Government indicates that, between 2016 and 2017, the National Council for the Prevention of Discrimination (CONAPRED) received 217 complaints relating to the ground of pregnancy. The Committee also notes the amendments made to the Federal Labour Act in 2019, as a result of which court investigation services can require employers to refrain from cancelling the registration with the social security institution of a pregnant woman worker who has been dismissed (section 857 of the Federal Labour Act). The Committee requests the Government to provide information on the application in practice of the legislation against discrimination relating to pregnancy (number of cases detected and complaints made, penalties imposed and compensation, information on the decisions of the relevant bodies, etc.).

Article 1(1)(b). Discrimination on grounds of age. In its observations, the CROM indicates that, following application of the Act on austerity in the Republic (of 19 December 2019), it is estimated that 300,000 jobs have been cut in Government bodies, and that the redundancies mostly affect men and women workers over the age of 50 and with 20 years of experience. The Committee requests the Government to provide its comments in this regard.

Women domestic workers. In its previous comment, the Committee requested the Government to provide information on the access to justice of women domestic workers who are victims of discrimination in employment and occupation. The Committee notes with interest the legislative reforms made through the Decree of 2 July 2019 “amending, supplementing and repealing certain provisions of the Federal Labour Act and the Social Security Act”, which the Government indicates provide legal security for domestic workers, and it notes the ratification of the Domestic Workers Convention, 2011 (No. 189). While noting this progress, the Committee observes that the CERD, in its concluding observations, expressed concern at the multiple forms of discrimination affecting Mexican indigenous women, Central American migrant workers and Mexican women of African descent, and particularly those working in domestic service, who are victims of violations of their labour rights, resulting in labour exploitation (CERD/C/MEX/CO/18-21, 11 September 2019, paragraphs 24 and 32). The Committee requests the Government to provide information on the impact of the recent legislative reform (and the other measures adopted) with a view to the elimination of discrimination in employment and occupation against women domestic workers, and to facilitate their access to justice.

Article 2. National equality policy. The Committee notes the Government’s indications in its reports and supplementary information that: (1) the anti-discriminatory approach of the Federal Act to prevent and eliminate discrimination (LFPED) must be incorporated in public policies; (2) the National Development Plan (PND) 2019–24 has been adopted, which provides that the Government “shall promote equality as a guiding principle”; (3) the National Programme for Equality and Non-discrimination (PRONAIND) 2019–24 has been drawn up with the objective of “removing accepted discriminatory practices in various key areas for the governance, welfare and development of society, with priority being given to vulnerable social groups”; and (4) the Labour Responsibility Award (DRL) has been developed. The Government also refers to Mexican Standard No. NMX-R-025-SCFI-2015 on labour equality and non-discrimination (NMX), which establishes a process of certification for work units that implement labour equality and non-discrimination practices (the Government explains in its supplementary information that, as of 20 August 2019, a total of 408 workplaces have received certification and that work has begun on analysing the NMX with a view to assessing the transition to an Official Mexican Standard on equality and non-discrimination). The Committee requests the Government to provide updated information on its national equality policy and, more specifically, on the impact of the measures taken for the implementation of the National Programme for Equality and Non-discrimination (PRONAIND) 2019–24.

National policy and measures to promote gender equality. The Committee notes with interest that, through the Decree of 6 June 2019 “amending Articles 2, 4, 35, 41, 52, 53, 56, 94 and 115 of the Political Constitution in relation to gender parity”, new provisions were included in the Political Constitution of the United States of Mexico on the principle of gender parity in popular elected office and appointment to high-level public positions of responsibility. The Committee also notes the Government’s indication that: (1) a call has been issued for a citizen’s consultation for the development of the National Programme for Equality of Opportunity and Non-discrimination against Women (PROIGUALDAD) 2019-24; and (2) between 2016 and 2018, a total of 1,377 awards were issued under the Family Responsible Enterprise Award (DEFR) for workplaces adopting good equality practices. The Committee also notes that the National Institute for Women (INMUJERES) established a Programme for the Strengthening of the Gender Mainstreaming Approach (PFTPG). The Committee requests the Government to provide information on: (i) the preparation of PROIGUALDAD 2019–24; and (ii) the impact of the Plan and of PFTPG 2020 on gender equality, including updated statistical data on the participation rates of men and women in education, training, employment and occupation, disaggregated by jobs and occupational categories, in both the private and public sectors, as well as the informal economy. The Committee also requests the Government to continue providing information on the measures adopted to promote the labour market participation of women, particularly in areas where their participation level is lowest.

Enforcement. The Committee notes the Government’s indication, in relation to labour inspection, that: (1) as from 2014, the Instruction on worthy and decent work that is healthy and free from violence has been implemented with the objective (among others) of ascertaining the application of the principle of non-discrimination; (2) the labour inspection services ensure that discrimination does not exist in work units; (3) with reference to training for inspectors, between December 2012 and May 2016, six courses were held on human rights, with the participation of 634 persons, and four courses on worthy and decent work, with 1 159 participants; and (4) the General Directorate of the Federal Labour Inspectorate (DGIFT) does not have information on inspections undertaken between July 2016 and August 2019 in relation to the present Convention. The Committee notes that the Inspection Programme 2019 (which indicates that one of the national priorities is to promote and guarantee access to decent work without any type of discrimination) does not include strategies or action to combat discrimination. The Committee therefore requests the Government to continue providing information on the activities of the labour inspection services in this area, including the number of complaints made to the labour inspection services and cases of discrimination that they have detected, and on the action taken in such cases, etc.). In its previous comment, the Committee requested the Government to assess the efficiency of discrimination procedures within the framework of the CONAPRED. The Government indicates in its report that CONAPRED has issued decisions against private employers, including in cases of discrimination relating to the refusal of access to employment and the continued employment of workers for reasons of health and age. The Committee requests the Government to provide information on the number of complaints made to the National Council for the Prevention of Discrimination (CONAPRED), with an indication of the reasons for the complaints and the action taken as a result (compensation and penalties).

Access to justice. The Committee notes the modifications made by the Decree of 1 May 2019 “amending, supplementing and repealing certain provisions of the Federal Labour Act…” to improve the handling of cases of discrimination in the field of labour, and particularly that: (1) the conciliation authority shall take measures to prevent the presumed victim of discrimination and the person or persons who are accused of the discriminatory acts from meeting or being in the same place (section 684-E of the Federal Labour Act); (2) the exemption from the requirement to exhaust conciliation mechanisms in cases of disputes relating to discrimination in employment and occupation (section 685ter of the Federal Labour Act); and (3) the court investigation services can take the necessary measures to prevent the removal of fundamental rights, such as social security, where there are grounds for the reasonable suspicion, appearance or presumption of discrimination (section 857 of the Federal Labour Act). The Committee also notes the indication by the Government and by CATEM that the Office of the Federal Labour Prosecutor (PROFEDET) has a platform for the provision of better and more information on equality, non-discrimination and human and labour rights. The Committee requests the Government to provide information on the impact of this reform of the Federal Labour Act on access to justice in relation to discrimination in employment and occupation, with an indication of the number of cases dealt with (subject to conciliation or by the courts), the compensation granted and sanctions imposed. The Committee also requests the Government to provide information on the impact of the information and guidance provided through the PROFEDET platform.