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The Government has provided the following information.

The Government of Mexico has duly complied with the provisions of Convention No. 87 and has provided information on this at the appropriate time to the International Labour Organization (ILO) by reporting on its application. Moreover, it has replied to the requests for information from the Committee on Freedom of Association.

Part 1. Civil liberties and trade union rights

Regarding the allegations of the ITUC and IndustriALL concerning violence against trade unionists in the context of a collective dispute in the education sector in Oaxaca

The Government of Mexico regrets and condemns the events but denies categorically that they constitute acts of violence against trade unionists, let alone a violation of ILO Convention No. 87.

In support of our position, we are providing the Committee with reports on the Nochixtlán case prepared by a special commission of the Senate of the Republic – the sovereign and independent authority of the Government of Mexico – and the National Human Rights Commission, an independent advisory body, which were published on 31 August 2016 and 17 October 2017, respectively.

These documents both agree that underlying the events is a conflict of a socio-political nature involving the excessive use of force, which has been recognized and addressed by the Mexican State.

We express our concern at the fact that cases of this type, despite being unrelated to violations of freedom of association and protection of the right to organize, should be used to lend an air of gravity to alleged non-observance of Convention No. 87.

Part 2. Reform of labour justice

This section addresses the points raised by the CEACR in its observations to the Government of Mexico regarding: (i) the communication from the ITUC, received on 1 September 2017, indicating that the constitutional reform was approved without holding any kind of consultations with the social partners; (ii) tripartite consultations on legislative developments relating to the constitutional reform; (iii) developments in the secondary legislation for applying the constitutional reform; and (iv) the impact of the constitutional reform and the establishment of the decentralized body.

(i) Consultations on constitutional reform. The Government of Mexico states that the constitutional reform was presented by the President of the Republic as a result of the analysis “Dialogues for day-to-day justice: Joint diagnoses and solutions” prepared by the Centre for Economic Research and Teaching, one of the most prestigious research centres in the country. Preparation thereof involved nine working groups, including on labour, and the participation of more than 200 specialists and 26 institutions for 14 weeks, with 123 meetings held.

This constitutional reform was unanimously approved in the Senate, while in the Chamber of Deputies it was approved by 377 votes in favour to only 2 votes against, which represents a 99.5 approval rate from all votes cast.

(ii) Tripartite consultations concerning legislative developments relating to the reform. This year, the Ministry of Labour and Social Welfare has held 91 meetings with representatives of workers, employers, academics and associations of lawyers in order to reach the consensus required for approval of the reform. Additionally, the Joint Commissions on Labour and Social Security; Equity and Gender; and Legislative Studies of the Senate of the Republic agreed, on 27 April 2018, to hold public hearings to receive the suggestions, observations and proposals of workers, employers, academics and civil society organizations regarding the preliminary draft opinion for the secondary legislation. These public hearings will be held at four regional offices with the attendance of the labour sector stakeholders.

(iii) Developments in secondary legislation. Since the approval of the constitutional reform, four proposals to reform the secondary legislation relating to labour justice have been presented to the Senate. The first was presented on 7 December 2017 by Senators Tereso Medina and Isaías González of the Institutional Revolutionary Party; the second was presented on 14 December 2017 by Senator Luis Sánchez, of the Democratic Revolution Party; the third was presented on 22 February 2018 by Senator María del Pilar Ortega, of the National Action Party; and the fourth was presented on 24 April 2018 by Senator Alejandro Encinas Rodríguez, an independent.

To continue the legislative process, the proposals were submitted to the Joint Commissions on Labour and Social Security; Equity and Gender; and Legislative Studies, within which the aforementioned public hearings for their discussion and subsequent approval will be held.

At the local level, nine states have modified their Constitutions to bring them into line with the Federal Constitution: (i) Campeche; (ii) Chiapas; (iii) Mexico State; (iv) Guanajuato; (v) Hidalgo; (vi) Morelos; (vii) Nuevo León; (viii) Quintana Roo; and (ix) Sonora. Furthermore, two states (Chihuahua and Hidalgo) have approved laws establishing conciliation centres.

(iv) Impact of the constitutional reform and the establishment of the decentralized body. This is an historic labour reform, which has transformed the system for ensuring labour justice that has been in place for more than 100 years.

Regarding the establishment of the decentralized public body for conciliation in disputes under federal jurisdiction and the national register of trade union organizations and collective labour agreements, the Ministry of Labour and Social Welfare has devised a number of administrative, organizational, technological and logistical tools for its implementation.

As regards the establishment of labour courts, the Federal Judiciary has established the Unit for the Implementation of Labour Justice Reform with a budget of 324 million pesos. At the local level, in May 2017 the National Committee on High Courts and the Supreme Court of Justice agreed on the establishment of a labour committee to monitor the implementation of the reform.

Part 3. Union representativeness and transparency

This section addresses the points raised by the CEACR in its observations and direct request to the Government of Mexico concerning the ITUC communication received on 1 September 2017, which refers to: (i) the large number of “employer protection agreements” and the complicity of the labour authorities in the registration of such agreements; (ii) legislative measures and practices to resolve what the ITUC refers to as the phenomenon of “protection unions and protection contracts” (protection agreements), including in relation to the registration of trade unions; (iii) the publication of trade union registrations and constitutions; and (iv) the application of the labour inspection protocol on free collective bargaining.

(i) “Employer protection agreements”. We reiterate our concern at the fact that observations are being made based on generic allegations that do not refer to specific cases or provide objective details for suspecting the existence of a “customary” practice that undermines the right to freedom of association and collective bargaining, let alone for suspecting that the Government is complicit in encouraging that practice.

The Government of Mexico has continuously reported on the specific steps taken to guarantee trade union representativeness. These measures include: the constitutional reform of 2017 – which was welcomed by the CEACR – and its future implementation; the agreements issued by the National Conference of Labour Ministers (CONASETRA); and the issuing and application of the “Operational protocol on free collective bargaining”. The Government has reported on these measures at every opportunity.

It is important to recognize that, in cases concerning specific situations of alleged violations relating to the existence of “protection agreements”, the Government of Mexico has always provided relevant and timely information, carrying out the appropriate investigations and providing information that will help to ensure labour justice. This issue has been considered within the Committee on Freedom of Association, specifically in relation to Case No. 2694.

In this regard, the Committee on Freedom of Association, in its 382nd Report of June 2017 (paragraphs 128–130), decided not to pursue its examination of the alleged extensive practice of “employer protection collective agreements”. On the contrary, the Committee on Freedom of Association decided to focus exclusively on examining the specific allegations regarding individual sectors or unions and the specific situations in which the existence of protection agreements was alleged.

(ii) Legislative and practical measures to address the issue of protection unions and protection agreements. With the aim of identifying instances of bogus agreements and checking that workers are made aware of collective agreements at their workplaces, a labour inspection protocol on free collective bargaining has been in use since 2016. This protocol allows labour inspectors to verify that collective agreements are being publicized and that labour relations conform to the agreed terms and conditions.

In legislative terms, attention should be drawn to the fact that, as part of the constitutional reform on labour justice, a paragraph has been added to part XVIII of article 123(A), ensuring protection for worker representation.

Furthermore, paragraph XXIIbis has been added to the same article to safeguard the principles of trade union representativeness, along with certainty in signing, registering and depositing collective agreements. This paragraph also ensures that workers are given an individual, free and secret vote when it comes to resolving disputes between trade unions, requesting the conclusion of collective agreements and electing trade union officials.

(iii) Publication of trade union registrations and constitutions. As a step forward, we can report that, by 30 April this year, information on 3,422 trade union organizations (unions, federations and confederations) registered with the federal authorities had been published through the “trade union consultation system”. To date, the system has recorded 254,512 consultations.

With regard to registrations at local level, it is worth noting that the Conciliation and Arbitration Boards are meeting their obligations in terms of transparency through the various mechanisms provided for in section 124(V) of the General Act on Transparency and Access to Public Information. These obligations will rest with the decentralized public body following the adoption and entry into force of secondary legislation, in accordance with the provisions of the constitutional reform to the effect that their actions shall be governed, inter alia, by the principles of transparency and disclosure.

(iv) Application of the labour inspection protocol on free collective bargaining. We can report that, from the date on which the protocol entered into force until April 2018, 196 inspections have been carried out resulting in 528 technical measures, benefiting 68,285 workers.

Part 4. Legislative provisions and practical measures noted by the CEACR

This section addresses the points raised in the CEACR’s comments to the Government of Mexico concerning: (i) trade union pluralism and the re-election of union officials; (ii) measures to amend paragraph II of section 372 of the Federal Labour Act; and (iii) information on the participation of foreign nationals in trade union executive committees.

(i) With regard to trade union pluralism in Government offices and the re-election of union officials, the Government of Mexico reports that, from 2013 to the present, five reform initiatives have been submitted to the Congress of the Union concerning trade union pluralism, together with a further two on the re-election of union officials in civil service workers’ unions, but that so far no decision has been taken. However, it should be noted that the Federal Tribunal for Conciliation and Arbitration, guaranteeing trade union autonomy, has invariably granted accreditation when notified of any change in leadership.

(ii) With regard to the comment on amending section 372 of the Federal Labour Act, the Government of Mexico reiterates that the prohibition on foreign nationals serving on trade union executive committees is not applied in practice. Moreover, no specific case of this has been confirmed and the Government is not aware of any complaint or claim in this regard. On the contrary, some trade union constitutions expressly recognize the possibility of foreign nationals serving on trade union executive committees.

In addition, before the Committee, a Government representative reaffirmed his country’s commitment to social dialogue and described the progress that had been achieved in relation to the requests made by the Committee of Experts. With reference to the allegations of violence against trade unionists in the education sector, in the context of the dispute that had occurred on 19 June 2016 in the municipality of Asunción Nochixtlán, Oaxaca, while regretting and condemning those events, he categorically denied that they constituted acts of violence against trade unionists and amounted to a violation of the Convention. Based on the information gathered by a special commission of the Senate of the Republic and the National Human Rights Commission, which had been published on 31 August 2016 and 17 October 2017, respectively, and regretting that this type of information had been used to attract the attention of the Committee, he emphasized that it was in practice a socio-political dispute, and not a trade union conflict, as neither of the two reports referred to above had noted any link between the acts of violence and any possible restriction on freedom of association, or the fact that the victims were members of a union. With regard to the constitutional reform of the system of labour justice, he welcomed the fact that in its report the Committee of Experts recognized the importance of the reform introduced in February 2017. It was indeed a historic transformation, as it established a new paradigm for labour justice in Mexico, developed through a broad process of consultation. As part of its implementation, it was progressing consistently at the local level in the states of the Republic, many of which had already amended their constitutions with a view to bringing them into conformity with the Federal Constitution, while two other states had adopted legislation for the establishment of their Conciliation Centres. With a view to developing secondary legislation in relation to labour justice, the Senate was examining four initiatives submitted by parliamentary groups with different ideological leanings, and particular attention was being given to ensuring that the secondary legislation was developed in a participatory and inclusive manner, with the social partners and civil society organizations. The Secretary of Labour and Social Welfare had commenced the development of nine forums for the establishment of federal and local decentralized public bodies. At the federal level, one institution would be responsible for the provision of conciliation services which workers and employers would be required to use prior to initiating labour procedures, with a view to the rapid settlement of disputes. The institution would also be responsible for the registration of unions, collective labour contracts and the related administrative procedures at the national level. The new constitutional mandate would also strengthen the Federal Judicial Authority and the Higher Courts of Justice of the states of the Republic, making it easier for them to resolve collective and individual labour disputes through the creation of labour tribunals. With a view to contributing to giving effect to the mandate of the constitutional reform, the Secretary of Labour had initiated a process of the analysis of the labour records of all the Federal and Local Conciliation and Arbitration Boards in each of the 32 states of the country. The Judicial Authority of the Federation, with a view to the creation of labour tribunals, had established the Unit for the Implementation of the Labour Justice Reform. For that purpose, it had been allocated a budget of 324 million pesos for 2018. At the local level, the National Commission for High and Supreme Courts of Justice had agreed to the establishment of a Labour Commission to follow up the implementation of the reform.

With reference to the observations made by the International Trade Union Confederation (ITUC) on 1 September 2017, according to which there were a high number of employers’ protection agreements or contracts and that they had their origins in the complicity of the labour authorities in their registration, the Government representative reiterated his concern at the fact that such observations were based on general allegations, and not on specific cases. He also emphasized the Government’s commitment to labour justice, based on the adoption of new laws and specific action intended to guarantee trade union representativity. He indicated that in cases in which indications had been provided of specific cases of alleged violations relating to the existence of so-called “protection contracts”, the Government had always acted in a cooperative manner, conducting the relevant investigations and providing information to contribute to labour justice. Recalling that the allegations of the ITUC had been made in the context of the Committee on Freedom of Association, and particularly in relation to Case No. 2694, he reaffirmed the Government’s will to continue providing information to the Committee on Freedom of Association in relation to allegations concerning specific situations. The Government would also provide updated information to the Committee of Experts on legislative developments with a view to giving effect to the constitutional reform, and on the practical measures taken to guarantee trade union representativity and free collective bargaining. With regard to the provisions respecting trade union transparency adopted under the reform of the Federal Labour Act in 2012, he indicated that, on 30 April 2018, the registration of 3,422 union organizations, including unions, federations and confederations, had been published in the “Trade Union Consultation System”, and over half a million consultations had been reported. With a view to detecting false contracting practices and ensuring that workers were aware of the collective contract in their workplace, the Labour Inspection Protocol on Free Collective Bargaining had been implemented since 2016. The Protocol allowed labour inspectors to ensure that collective contracts had been published and that workers were aware of their content, and that the employment relationship was performed in accordance with the terms and conditions set out in the contract. In relation to the question of the possibility of trade union pluralism in state bodies and the possibility to re-elect trade union leaders, he indicated that since 2013 five reform initiatives had been submitted to the Congress of the Union in relation to trade union pluralism, as well as two initiatives relating to the re-election of trade union leaders in public service unions, of which three initiatives were under examination by the Congress of the Union. With regard to the last point in the observations of the Committee of Experts, in which the Government was requested to take measures to amend section 372 of the Federal Labour Act with a view to removing the prohibition on foreign nationals from being members of trade union executive bodies, he recalled that the prohibition was not applied in practice, as Mexican nationality was not a requirement for the registration of trade union executive bodies. Moreover, no specific case had been reported in that regard, and there had been no complaints or charges. Indeed, some union by-laws explicitly recognized the possibility for foreign nationals to be members of their executive bodies.

The Worker members stated that the repeated failure by the Government to comply with the Convention had led to the discussion of the case in the Committee on three occasions in recent years. During the most recent discussion in 2016, the Committee had called on the Government to enact the proposed reforms to the Constitution and the Federal Labour Act and to reinforce social dialogue through the adoption of complementary legislation. They recalled that their criticism had focused on protection contract unions, which were employer-dominated unions that had undermined the labour relations system in Mexico. Those unions negotiated “employer protection contracts”, without the involvement or even knowledge of the workers that the union was supposed to represent. Those contracts fixed low wages and “protected” employers from having independent unions in the workplace. Tragically, that had meant that millions of Mexican workers had no effective means to defend their rights at work. Once the protection contract union was established, it was extremely difficult for workers to form an independent union. When workers did attempt to rid themselves of a protection contract union through a recount election, the employer, the protection contract union and the Government often colluded to intimidate the workers through delays, verbal threats, physical violence and dismissal. That situation had remained the same. As the Committee of Experts had noted, in February 2017, the Government had enacted meaningful reforms to the Constitution. Those reforms addressed some of the key criticisms raised by the ILO and the global trade union movement and had given some hope for change. But as the Committee of Experts had also noted, the Government still had to enact secondary legislation. Unfortunately, the proposals that the Government had put forward undermined both the letter and spirit of the Constitution and the Convention. For much of 2017, the Government had worked behind closed doors with business leaders on amendments to labour law, ostensibly to give effect to the constitutional reform – without independent union leaders being consulted during that process. In early 2018, a bill had failed to pass in Congress, but the Government was trying to push through the same legislation during a special session of Congress in June 2018. While the Government had claimed that it was undertaking consultations, the only proposal under consideration remained the Bill rejected by Congress, which showed that the Government had capitulated to entrenched interests, including the protection contract union confederations, whose leaders had introduced the legislation in the Senate. Addressing their concerns point by point, the Workers members first referred to the Conciliation and Arbitration Boards (CABs) which for many years had been widely criticized for their inefficiency, political bias and corruption. The constitutional reform was proposed to abolish the CABs and: (i) transfer the legal functions of the CABs to the judicial branch, foreseeing a process of conciliation by “specialized and impartial” federal and local level conciliation centres before the referral of cases to the courts; and (ii) transfer the administrative functions of the CABs, such as union registration, to the new decentralized and autonomous federal entity whose president would be voted on by the Senate. The current bill before the Senate proposed to create: (i) the new Federal Institute of Labour Conciliation and Registration; and (ii) a new “Technical Council” which would have broad powers over the programme, budget and staff. While the autonomy of the Federal Institute could end the firm hold of the protection contract unions over the union registration process, collective bargaining and collective conflicts, the proposed tripartite control through the Technical Council would include the same protection contract unions that had perpetuated protection contracts through the CABs. Moreover, the Secretary of Labour had stated that the independent labour tribunals would not begin to operate until the CABs had resolved all pending cases. Their number was in the thousands and would take many years to clear. Independent unions would therefore continue to suffer under the existing corrupt system and would have to wait years before the promise of neutral labour justice would be realized. That undermined previous commitments to an early transition to the new constitutional arrangements on labour justice. Additional concerns related to the proposal in the Bill that an agreement would take automatic effect if the Federal Institute did not take a decision to register a collective agreement within 20 days. That would provide employers with a mechanism to register collective agreements that did not comply with new legal requirements. It would allow employers to continue colluding with “protection unions” of their own choosing rather than engaging in good-faith bargaining with independent unions.

The second problem with the draft legislation concerned the so-called recuento procedure. The Bill made it practically impossible for workers to replace unrepresentative unions through a ballot by imposing new evidentiary requirements which had to be satisfied through a lengthy administrative process before a date for a vote was even granted. That would make the process needlessly burdensome. As that procedure was the only means for workers to establish an independent union where an illegitimate union already existed, the new process would ensure that undemocratic unions could continue to deny workers the representatives of their choice. As the new Institute would be controlled by employers and protection contract unions, workers also had good reason to be concerned that employers would retaliate and dismiss them. Thirdly, in Mexico the General Act on transparency and access to public information provided for the publication of trade union registration certificates and their statutes. Workers and the public could access information about unions, including their internal structure, leadership and any existing collective agreements. Such transparency was essential to ensure workers could access information about the entities that claimed to represent them, and any agreements those entities might have with employers. It was a vital tool in the fight against protection contract unions. The Government had reported that it had made progress in this area, claiming an 85 per cent compliance rate. If true, that would be a positive development. But the Bill would have the effect of significantly weakening those transparency provisions, including the requirement to disclose information about union registration and existing collective agreements, and would continue to deprive the vast majority of Mexican workers covered by collective agreements of the right to obtain a copy. Fourthly, under the constitutional reform, workers had to approve collective agreements by a secret ballot. That measure had been introduced to ensure agreements could not be signed without the consent or knowledge of the workers concerned. But the proposed implementing Bill would not require inspectors to verify that workers had approved the collective agreement by a secret ballot. Instead, the Bill contained a vague requirement that entities claiming to represent the workers should prove there was support, but failed to set out any specific criteria. The proposal also gave the Institute broad discretion to decide whether or not there was evidence. Those provisions were all the more worrying as current labour law provided that collective agreements were automatically renewed if neither party sought modifications. Those rules would apply equally to the protection contracts, which could thus evade the minimal requirements regarding representation. But the issue of protection contract unions and the flawed secondary legislation were not the only problems. As the Committee of Experts had once again highlighted, the prevalence of anti-union violence was a serious concern. And new acts of anti-union violence had occurred since the Committee of Experts had last met. In November 2017, mine workers had gone on strike to demand their right to join a legitimate and democratic union. Dozens of armed police had taken over the mine. An armed group had attacked the strikers and killed two trade unionists on mine property. In January 2018, a labour activist who had been travelling to meet the strikers had been beaten and threatened with further violence if he continued to advocate a new trade union and a new contract. He had been murdered later that month. Finally, the 2012 amendments to the Labour Act had greatly expanded the use of outsourcing, although the Act provided that companies could not outsource a worker who was assigned work that was a core function of the company. Although illegal, the Government had done nothing to stop such practices. The use of outsourcing was a common tactic to prevent workers from forming a union or to bust unions by replacing the workforce with contracted workers. The Worker members urged the Government to withdraw the existing proposal. As national elections were imminent, the next Government should decide that issue following consultations so that the views of all stakeholders were taken into consideration.

The Employer members recalled that the case had already been examined on three occasions, two of which were in 2015 and 2016, when emphasis had been placed on the progress that was being made by the Government with the expectation that the constitutional reform would be adopted. The reform had been completed, which had produced a change. The Conference Committee was examining the case of the application by Mexico of Convention No. 87, but the country had not ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). There were aspects of the case that were related to freedom of association and the establishment of unions. Nevertheless, the Conference Committee, with reference to the observation of the Committee of Experts, needed to be careful in its examination not to provide guidance on an instrument that had not been ratified. The same applied to Articles 2 and 3 of the Convention, which were fairly general provisions, on which the Committee of Experts had entered into a series of details that could be considered to have gone beyond the scope of those provisions. Article 2 provided that workers, without distinction whatsoever and without previous authorization, had the right to establish and join organizations of their own choosing, subject only to the rules of the organization concerned. Article 3 provided that workers’ organizations had the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organize their administration and activities and to formulate their programmes. That was the framework for the discussion of the case. In the first place, the complainant organizations in the present case were of an international nature, and were not the organizations of Mexican workers. It should therefore be borne in mind that their vision of the situation in the country might be broader than the manner in which the social partners acted at the domestic level, with particular reference to trade unions. With regard to the subject of public liberties and trade union rights, the Employer members rejected any action that endangered human life. Nevertheless, within the framework of the ILO, there needed to be a connection with freedom of association. In its response, the Government had indicated that two special commissions had found that the acts in question had no union origins, but were of a socio-political nature and involved the excessive use of force, which had been recognized and dealt with by the Government. As such, it was a case that, while deplorable from the viewpoint of human life, should not be examined in greater depth or detail by the Conference Committee, the Committee of Experts or any other ILO supervisory body.

Secondly, with regard to conciliation, arbitration and labour justice, the constitutional reform established that it would be the corresponding branch of the public authorities that would be responsible for a series of elements, for which reason the Committee of Experts had noted “with satisfaction” its adoption and entry into force. In that respect, it was important to recall the significance of “noting with satisfaction”, which occurred fairly rarely and was of great relevance for the Organization. The Committee of Experts noted with satisfaction cases in which governments had taken measures through either the adoption of new legislation, an amendment to the existing legislation or a significant change in the national policy or practice. The Committee of Experts also expressed satisfaction when it was indicating to governments and the social partners that a particular matter had been resolved and that it could provide a model or example for other countries. The reform offered legal security for the following reasons: (1) labour justice would be imparted by bodies of the federal and local judicial authorities; (2) conciliation procedures would be more flexible and effective; (3) the federal conciliation body would be a decentralized institution; and (4) new legislation would be adopted on the procedures and the decentralized bodies of the conciliation service. As indicated by the Government representative, that was what was happening in Mexico, where the Congress was examining a series of legislative initiatives. It was undoubtedly good for there to be consultations on all of those legislative changes. In the previous conclusions of the Conference Committee on the case, the call had been made to establish broad social dialogue on the subject. In that regard, the Government had provided information on the decision by Congress to open up participation through four regional fora with broad participation, and that the fora that had been adopted had been subject to widespread discussion. The Employer members trusted that the reforms would continue to be undertaken in an appropriate manner.

Thirdly, with reference to trade union representativity and protection contracts, they indicated that it was necessary to be very prudent. It was one thing to establish unions which could be considered to be protection unions, that is which enjoyed the prerogative of exclusive collective bargaining, but collective negotiations for protection were quite another matter. Reference should not be made to the latter subject, as it was typically covered by Convention No. 98, which had not been ratified by Mexico. Moreover, the Committee of Experts at the time had noted with interest a series of proposals in light of the amendment of the Federal Labour Act in 2012. In that regard, the Committee of Experts had requested the Government to indicate why it had not provided more detailed information. Although the Government had not replied on that point, and should do so in its second intervention, it had perhaps not done so because it had not ratified Convention No. 98. The Employer members emphasized that great care was needed with the approach adopted and did not agree with the views expressed by the Committee of Experts when it noted with concern the observations made by the ITUC on other matters raised in general terms, concerning which it would be interesting to be provided with greater detail, if indeed additional information pointed to a different conclusion. However, in the meantime, there were no grounds for a request for further information on the subject. With regard to the publication and registration of trade unions, the Government indicated that there was a new information system, which provided detailed figures of the number of unions in Mexico. The Government had also provided an adequate response in document D.10 to the request that had been made at the time. With reference to trade union pluralism and the re-election of union leaders, the Committee of Experts had referred to legislative matters which could be considered not to be in conformity with the Convention. Nevertheless, it was noted both in the comments of the Committee of Experts and the reply by the Government that the case law of the Supreme Court of Justice, and the practice followed, meant that the provisions in question were not applicable. The situation bore some similarity with the situation of obsolete ILO standards which had not been abrogated. Some standards had been abrogated the previous year, and others this year. And yet the Cartier Working Party had identified around 65 obsolete standards which were in force, but not applicable. Accordingly, the concept of applicability, which was entertained in the Organization, should also be taken into consideration in the case of member States, as the Government had said. There would be no violation of freedom of association if certain existing provisions were not applied, as recognized by the judicial authorities in Mexico. That had also been recognized by the Government, which had indicated that the freedom to elect trade union representatives, including foreign nationals, existed and that there had been no complaints or specific cases in that regard. The Government had also indicated that there were unions which recognized in their by-laws the possibility to elect foreign nationals as representatives. In that regard, the Employer members questioned the need to raise concerns in relation to legislation that was not applicable. If it was not applicable, the Committee could be certain that in Mexico that particular freedom was broadly permitted, in accordance with the views of organizations such as the ITUC, IndustriALL and the Committee of Experts when it examined such cases. For that reason, the requests made concerning the number and positions of foreign nationals who were members of unions could be considered excessive, as the Government had already indicated that there had not been a single complaint. The subject had probably been raised for the sake of international observers, but there were no grounds for it in practice, as no difficulties had arisen in that regard. The Employer members considered that, in the analysis of the case, there were points that had been resolved and would have merited being noted with satisfaction. They were of the view that the policy adopted by the Government in its legislative changes was correct and that the expectations had been met on matters on which, a long time ago, the Committee had expressed concern, as the Committee on Freedom of Association had done in Case No. 2694.

The Employer member of Mexico expressed appreciation for the information provided by the Government on the issues raised by the Committee of Experts and, regretting the lack of objective information provided by the Worker members, said that his country was free of harassment and dismissals, that there were over 20 million workers in the formal economy, collective bargaining existed and, despite challenges, it enjoyed labour and social peace. The reform had been considered satisfactory by the Committee of Experts and had not generated any open opposition at the national level. In 2012, the Federal Labour Act had been amended and the constitutional reform had been undertaken between 2015 and 2017. Regulations were being examined in the Senate on the basis of various initiatives submitted by various groups with different views. In accordance with the constitutional framework, discussion and consultation forums had been organized and it had been agreed to hold public hearings, thereby engaging in social dialogue and complying with the call made by the Conference Committee in 2016. Moreover, complex and far-reaching issues had been included in relation to labour law, trade union transparency and collective bargaining, and secret ballots for workers. The changes that were under way required efforts to be made in the areas of legislation, the budget and infrastructure, and training and capacity building. The registration of trade unions and collective agreements would be the responsibility of a decentralized public authority headed by a person proposed by the executive authorities and approved by the Senate, thereby ensuring full independence. Similarly, conciliation bodies would be set up in federated bodies for the effective resolution of disputes, in accordance with the Convention. The replacement of conciliation and arbitration boards with tribunals under the judicial authorities was in line with a proposal made by the Conference Committee. The constitutional reform had set aside a period of one year, which had now passed, for regulations to be adopted. However, some elements had come into force the day after the promulgation of the reform, including the obligation to grant accreditation to workers’ representatives for the purpose of concluding collective labour agreements and the provisions of Article 123(XXIIbis) of the Constitution. That showed that the procedures and requirements established in law to safeguard freedom of collective bargaining and the legitimate interests of workers and employers should guarantee: (a) the principles of the representativity of trade unions; and (b) certainty in the conclusion, registration and deposit of collective agreements. In addition, workers’ ballots would be individual, free and secret for the resolution of disputes between trade unions, as well as requests to conclude collective agreements and the election of union officials. The judicial authorities and the reform process would abide by the established constitutional precepts. The situation should serve as an example for other countries and, although it would be desirable to conclude the legislative process, its complexity meant that it was still a work in progress. The Government should be encouraged to finalize what remained pending and the achievements made should be recognized. The case should be recorded in the Committee’s conclusions as a case of progress.

The Worker member of Mexico emphasized the importance of recalling the context in which Mexico’s labour reforms were being discussed. It should be emphasized that two significant reforms had been made: the labour reform of 2012 and the constitutional reform that had entered into force in 2017. The latter was the result of a series of prior consultations carried out by the Centre for Economic Research and Education, at the explicit request of the federal executive authorities, involving legal experts, academics and a representative sample of civil society. However, in the absence of the participation of workers’ organizations, which had not even been invited to participate, their views had not been taken into account. As result of the consultation, in April 2016, the Office of the President had submitted the corresponding legislative initiative, known as “day-to-day justice”, to the Congress of the Union. It entailed substantial changes to the Constitution, particularly on labour matters. He recalled that, in his statement in 2016, he had rejected the reforms and expressed concern at various elements thereof: (a) the transfer of labour jurisdiction to the federal or local judicial authorities, thereby losing the social balance offered by tripartism; (b) the implementation of conciliation as a compulsory and prejudicial process through specialized independent conciliation centres; and (c) the establishment of a decentralized institution responsible for registering collective agreements and trade unions and performing conciliation functions at the federal level, with the head of the institution being appointed by the federal executive authorities. As the final outcome of the series of amendments, on 13 October 2016 the constitutional reform had been adopted unanimously, prompting an unprecedented sea change in Mexican labour law. The labour reform proposed most recently in Mexico was a consequence of that constitutional reform. Attention should be drawn to the consultations announced on 27 April 2018 by the Senate. Trade union organizations and their leaders had the role of moving in a responsible and informed way towards the new model of labour justice to give those they represented real legal certainty of the defence of their rights. In conclusion, he urged the Government to offer every guarantee that the Federal Labour Act would be the product of dialogue and agreement among the tripartite partners.

Another Worker member of Mexico recalled that the amendment to article 123 of the Constitution had entered into force on 24 February 2017. The reform took into account several recommendations. For example, the labour justice system was no longer in the hands of the executive authorities following the abolition of conciliation and arbitration boards and the establishment of labour courts. Mandatory conciliation had also been introduced prior to referral to labour courts. Similarly, a decentralized body had been established at the federal level which was responsible for ensuring conciliation, the registration of all collective labour agreements and trade unions, and all related administrative procedures. However, he was concerned by the delay in amending the Act implementing article 123, the deadline for which had been 24 February 2018. The deadline had expired without the Government having paid due attention to it, and there was therefore a great deal of uncertainty concerning the labour justice system and the current situation. In April 2018, the Senate had adopted an agreement with the social partners, although it had done so after the deadline. It was a matter of concern that the Government had not adopted the necessary measures to initiate the legislative amendment process. Finally, he called on the new Government, which had been elected through a democratic and popular vote, to adopt the necessary measures to bring the labour legislation into conformity with the principles of the Convention and to ensure that effect was given to the observations of the Committee of Experts with a view to eliminating the malpractices affecting Mexican workers and bringing an end to the persecution of trade union leaders and the death of workers.

Another Worker member of Mexico indicated that, following almost 30 years of the implementation of the neo-liberal policies of financial institutions such as the International Monetary Fund (IMF), World Bank (WB) and Trilateral Commission, the labour conditions of workers throughout the world had become more precarious, and Mexico was no exception. He denounced the abuse of outsourcing, which not only undermined the application of the Convention, but also the Mexican Constitution and human rights, as it negated the right to organize, collective bargaining and the right to strike. The national Constitution provided that Mexican nationals had the right to health, nutritious food, housing, culture, sport, education and socially useful work. Outsourcing violated those rights. There were national owners of micro, small and medium-sized enterprises who complied with all their obligations respecting work-related benefits and social security, but others evaded them. Such abuse caused social problems, which would only get worse in the near future, especially in the case of pensions since, if social security contributions were not paid, future generations would not have the right to housing, health or a decent pension. Outsourcing also involved processes being carried out in the name of another company to ensure that, in the case of a labour dispute, workers had no protection when claiming their legal entitlements.

The Government member of Paraguay, speaking on behalf of the vast majority of Latin American and Caribbean countries welcomed the information provided by the Government in recent years regarding the action taken and measures adopted to address the observations of the Committee of Experts. In 2016, the Committee of Experts had noted with satisfaction the adoption and entry into force of the constitutional reform, which established, among other measures, that labour justice was the responsibility of the judicial authorities, and was no longer dependent on the executive authorities. It also had the objective of strengthening conciliation machinery and the creation of an autonomous body responsible at the national level for the registration of collective agreements and trade unions. The Government had also provided information on the consultation processes and round tables that had been held with a view to harmonizing the legislation to give full effect to the constitutional reform, and particularly the approval by the Senate of the holding of public hearings to gather suggestions, observations and proposals from workers, employers, academics and civil society organizations on the draft secondary legislation. Taking into account the willingness expressed and the results achieved, she wished the Government every success in its ambitious reform process and in the historic transformation of the administration of labour justice.

The Government member of Panama endorsed the statement of the Government member of Paraguay and expressed appreciation of the efforts and interest demonstrated by the Government in continuously providing updated information on compliance with the Convention. Emphasis should be placed on the judicialization of labour procedures, which had been the responsibility of the executive authorities in Mexico. The observations of the Committee of Experts were relevant, as they assessed positively the progress made by the Government in terms of labour justice, which was in line with ILO principles. The transformation had been introduced taking into account the tripartite partners in the country, thereby demonstrating the relevance of social dialogue as an essential tool for freedom of association and the pursuit of social justice. He reiterated his support for the Government in the process of ensuring continuous improvements, and emphasized the importance of ILO tripartism for the achievement of the common good.

An observer representing the International Trade Union Confederation (ITUC) said that in February 2017 a decree had been issued to amend article 123 of the Constitution with regard to labour justice, which was the most important development in the 100 years since the Constitution had been in force. In 2016, the Committee had offered technical assistance to the Government and had called on it to engage in social dialogue for the preparation of secondary legislation. However, the Government had failed to promote social dialogue and to request technical assistance. Consequently, the senators who were members of the Confederation of Workers of Mexico (CTM) and the Revolutionary Confederation of Rural Workers (CROC) had put forward a reform initiative, which had been considered unconstitutional and which would derogate from Mexican labour law, as it did not regulate all of the matters envisaged in the constitutional reform. The initiative had proposed to restore the false tripartism of the conciliation and arbitration boards and to grant judicial powers to decentralized administrative bodies, including hearing cases on the right to strike, for which only jurisdictional bodies were responsible in accordance with article 123(XX) of the Constitution. Furthermore, the Senate had also issued a draft decree to approve the initiative. The previous week, the Senate had called on the alleged social partners to give their opinion on the decree. In that way, other initiatives put forward by other senators for the appropriate regulation of the constitutional reform had not been considered. To achieve social justice and peace, it was necessary to replace the corrupt legislative process relating to the secondary reforms that was being followed by the Government.

The Government member of Honduras welcomed the action and measures adopted by the Government in the field of labour justice since February 2017 as part of the ongoing reform process. However, he expressed concern with regard to the cases that, despite not appearing to be violations of the Convention, could be considered acts of violence against trade unionists. Finally, he urged the Government to continue promoting new inter-institutional dialogue mechanisms, in accordance with the Convention and workers’ fundamental rights, to guarantee respect for freedom of association in the country.

The Worker member of Germany stated that the progress referred to by the Government in the implementation of the Convention was merely progress on paper and that little had changed in practice. The constitution of independent unions and their work was alarmingly hampered by a fatal combination of: (i) an arbitrary registration procedure; (ii) the prevalence of protection contracts; and (iii) the absence of publication of both the registration of unions and the agreements concluded. The consultation and arbitration boards (CABs), which were still the competent authorities at the federal and state level, were not independent and impartial, as demonstrated by their composition, and were always finding new ways to obstruct the registration and work of independent unions. Protection contracts were negotiated without the knowledge of workers, in some cases including German companies, even before a plant had been built or a company had started its work. If a company was already in the hands of a so called protection union or if a protection contract existed, the CABs had many opportunities to reject applications from independent unions. To enforce a real collective agreement against a “protection union” was practically impossible. The process was overshadowed by a lack of transparency, bureaucratic hurdles, lay-offs, threats, intimidation and violence. In order to demonstrate progress towards compliance with the Convention, it was no longer sufficient for the Government to refer to lengthy reform processes, discussions between the various stakeholders and secondary legislation that had not yet come into force and which was designed to counteract the fundamental demands of the constitutional reform. She therefore called on the Government to comply fully with the findings of the ILO supervisory bodies and to that end: (i) to demonstrate, by means of concrete actions, how it ensured the swift and independent registration of trade unions; (ii) provide evidence of the publication of collective agreements, registration, recognition and other trade union statutes; (iii) explain in detail the specific measures taken to address all the problems arising in connection with the protection contracts (not only measures on paper); and (iv) consider a statutory obligation for employers to make the applicable collective agreement known in the workplace.

The Government member of Algeria expressed support for the Government’s efforts to reform the labour justice system, strengthen conciliation bodies and promote the right to organize and collective bargaining. All the necessary measures and procedural guarantees had been adopted to ensure compliance with fundamental rights, including freedom of expression and association, and the powers of the labour inspection system had been strengthened. There was no evidence of violations of freedom of association. He welcomed the progress made in strengthening the existing national instruments to give full effect to the constitutional reform and hoped that the Committee would take into account the progress achieved.

The Worker member of the United States said that CABs impeded the freedom of association of workers. One example was the strike by the independent union of miners initiated in 2008, on the legality of which the federal CAB had never ruled. In 2013, a company union run by the owner of the mine had applied for collective bargaining rights and had occupied the mine in an effort to end the strike. Rather than protecting the strike, the CAB had accepted the illegal application of the company union, and had allowed elections in 2017, in which both the employer and company union had submitted identical lists of eligible voters to the CAB. The lists had included not only miners recruited by the company to vote in its favour, but also workers who should not have been eligible to vote (including retired miners, those who had received severance pay and even miners who had died). In spite of the irregularities (collusion between company union and the employer as evidenced by the identical lists, and the failure to demonstrate who was an active worker eligible to vote), the CAB had allowed the election, which the company union had won. In January 2018, however, a court had reversed the election and had forced the company union to abandon its claim for collective bargaining rights, finally offering some protection for the lawful strike by the independent union. That example demonstrated the problems with the CABs: (i) they were not impartial, and were actually biased against independent unions; and (ii) they had close ties with both protection unions and employers. At the time when the federal CAB had decided to allow the second election, the secretary of the board for collective matters was a person who had formerly been employed as an attorney for the company and was currently in that position again. In addition, workers had to wait years before being afforded protection of their freedom of association rights. As promised in the constitutional reform, the CABs had to be replaced by a labour justice system that was fully independent of the executive branch and allowed workers full freedom of association. Those changes had to occur before any renegotiated North American Free Trade Agreement (NAFTA) or other free trade agreements, or even Mexico itself, could comply with the Convention.

The Government member of Uruguay supported the statement made by the Government member of Paraguay and highlighted, among the measures adopted by the Government, the procedural labour reform of 2012 and the promotion of a reform process. The full implementation of such laws took time and generally required several amendments to achieve the intended objectives. The labour reform had led to a reduction of more than 60 per cent in the normal duration of labour proceedings, which represented a clear benefit for complainants, who had access to more rapid and efficient justice. However, some minor aspects of the reform still needed to be adjusted. It was reasonable to request an adequate time frame for its full adaptation and implementation. In that regard, and taking into account Uruguay’s experience in that area, he offered technical cooperation to the Government and encouraged it to continue along the path of social dialogue.

The Worker member of Colombia criticized Mexico for the violations of freedom of association, especially those arising out of the existence of employer protection agreements or contracts. All of the ILO supervisory bodies agreed that employer protection contracts constituted a violation of rights. The gravity and repeated nature of those violations required drastic action by the ILO. The legal reform of 2012 and the constitutional reform of 2017, instead of eliminating a practice which in itself distorted trade unions and the objectives of bargaining, had reformed registration, publication, ballots and other provisions. Consequently, five years after the legal reform and 15 months after the constitutional reform, conciliation and arbitration boards were continuing to register protection unions and employer protection contracts. The Government needed to act on the recommendations and observations of the ILO supervisory bodies with regard to protection unions and employer protection contracts and stop such practices being possible through laws adopted following genuine and effective consultations with the representative organizations of workers and effective control by the authorities to prevent non-democratic trade unions and simulated negotiations.

Another Worker member of Colombia emphasized that all factors that restricted freedom of association, especially in relation to the Convention, were entirely unacceptable. Trade unionism free from any kind of pressure was crucial for a country’s development. Consequently, he requested more detailed information on protection contracts from the social partners in Mexico. He also urged the Government, together with the trade unions and employers, to consult on the Federal Labour Act in order to avoid manipulative practices that were detrimental to the Convention.

The Government member of Brazil welcomed the progress made by the Government, as recognized in the report of the Committee of Experts, in the modernization of the administration of labour justice, as well as the support expressed by the Chamber of Deputies and the Senate for the constitutional reform. He also emphasized the legislative and practical measures adopted to resolve “the issue of protection unions and protection contracts” and highlighted the ambitious consultation processes and round-table meetings carried out by the Government to give full effect to the constitutional reform through secondary legislation. With regard to the representativity of trade unions and transparency, he indicated that observations had been made on the basis of general allegations that did not refer to specific cases. It was unacceptable for the supervisory bodies to make comments that were not objective. Furthermore, Mexico had not ratified Convention No. 98, so the Committee could not examine comments about the country in relation to that Convention. The discussions of the Committee should be limited to the technical aspects of the application of the Convention. In conclusion, he encouraged the Government to continue pursuing its objectives of labour reform, in line with its international commitments.

The Worker member of Argentina noted that on several occasions the Mexican Government had provided information to the Committee on progress that had not been achieved in practice. The Federal Act on Government employees was an example of those delaying tactics. The Act had been adopted in 1963 and five years later the Committee of Experts had noted that the Government was reconsidering the aspects of the Act that were contrary to the Convention. Fifty years later, those aspects of the Act were still in force. The Government had noted that the provisions in question were not applicable under the case law of the Supreme Court of Justice. However, the findings of the Court did not mean that the sections of the Act that were contrary to the Convention had been repealed and workers continued to lodge complaints in that regard. That situation was a clear example of a persistent violation of the Convention. Violations of freedom of association also affected education workers who were combating the “education reform” that restricted freedom of association and bargaining. Those protesting against the reform were subject to repression, as had been the case in the state of Oaxaca in 2016. That repression had led to the death of ten people, the detention of 30 and 100 injuries. And yet, those acts were still unpunished, as was the case of the disappearance of 43 students from Ayotzinapa. The Government should take specific action to adapt national law and practice to the Convention. Furthermore, the Committee should urge the Government to cease its decades-old practices that violated freedom of association.

The Worker member of Paraguay noted that some of the recommendations of the Committee of Experts had been taken into account by the Government, while others had not. Mexico had undertaken constitutional reform in relation to labour, as a result of which the conciliation and arbitration boards had disappeared and labour courts had been established. However, the deadline to amend the Act regulating those bodies and courts had passed and the Mexican Congress had suspended the reform process to hold consultations with the partners. The process was not being implemented within the constitutional time frame. He recalled that the reforms needed to guarantee the representativity of trade unions and transparency in the conclusion, registration and deposit of collective labour agreements to ensure that they were concluded by organizations that genuinely represented the interests and rights of workers. Mechanisms were needed that facilitated the exercise of union activities and the right to strike. He therefore called on the Mexican Government and Congress to adopt, through dialogue with the most representative organizations of workers and employers, the necessary measures to bring the legislation into conformity with the principles set out in the Convention.

The Worker member of Canada regretted the widespread use of illegitimate collective bargaining agreements signed between an employer and an employer-dominated union with the blessing of the government authorities. Workers trying to organize independent and democratic trade unions were harassed, threatened and assassinated: in November 2017, Victor and Marcelino Shaunitla Peña had been murdered while participating in a work stoppage at a gold mine, refusing to join a union imposed upon them by the company. This had shone the spotlight on Mexico’s corrupt and anti-democratic labour relations system of protection contracts. In January 2018, Quintin Salgado had been murdered after being threatened if he kept advocating a change of unions. There had been no investigation of these murders. Also in January 2018, after receiving threats from the corporate union, Eli Manuel Robelledo, a mine worker, had seen his house burned down. A few days later, another worker, Monica Lopez, had been beaten and left unconscious. No investigations had been carried out. She recalled that rights of workers’ organizations could only be exercised in a climate free from violence and that it was the responsibility of governments to ensure that this principle was respected. The free choice of workers to establish and join organizations was so fundamental to freedom of association as a whole that it could not be compromised by delays and simulated reforms. She called on the Government to reform and enforce the rule of law in order to protect workers’ demands for democratic unions, better wages and working conditions, and health and safety at work. Mexico was under the obligation to change its law and practice in order to restore workers’ rights, in compliance with the Convention, before any free trade agreement could be signed.

An observer representing the International Transport Workers’ Federation (ITF) stated that protection contracts presented the most serious obstacle to the exercise of freedom of association in Mexico. The Conference Committee, the Committee of Experts and the Committee on Freedom of Association had all urged the Government to effectively abolish the protection contract system but there had been no real change. That system deprived workers of any right to safe working conditions, labour inspections, compensation or social security and was designed to dismantle genuine and democratic trade unionism. Unfortunately, this had been achieved in the road transport and port sectors. The constitutional reform required the enactment of secondary legislation. However, the proposed legislation undermined the spirit of this reform and contained numerous provisions that would negatively affect workers, including the amendment to section 388 of the Federal Labour Act. Unions representing workers in the aviation sector had been frustrated by protection unions that had claimed to represent all workers and sought to negotiate a single agreement. The proposed amendment to section 388 would exacerbate that problem in prohibiting professional unions from negotiating separate agreements with a common employer. That was inconsistent with the obligation to promote free and voluntary collective bargaining. The ILO supervisory bodies had made it clear that in order to satisfy trade union plurality where a single agreement policy was in place, minority or professional unions should at a minimum be able to conclude collective agreements on behalf of their members. That principle was particularly important in Mexico due to the impact of protection contracts. The speaker called on the Government to withdraw the proposed secondary legislation to bring its labour laws into conformity with the Convention.

An observer representing IndustriALL Global Union indicated that protection contracts had been a vital part of the state policy and economy for a long time. This model had spread to cover all industrial sectors: it guaranteed the lowest labour costs and prevented any negotiation with workers. Following the privatization of the energy and gas sectors, the concession and exploration contracts contained specific clauses mentioning the chosen union, thus depriving workers of any choice. Despite promises on the international scene, the Mexican Government had not done anything to eradicate these protection contracts. Every new investment announced, be it in the auto sector, energy, electronics, textile, comes with “the cherry on the cake”, a protection contract already signed with the accomplice corporate unions, long before the plant was built and any worker appeared. The previous week, approximately 50 women workers in the textile sector had been dismissed for defending their rights: the management had said that there would be no other union than the one already in place in the plant. Only the official corporate unions could obtain a collective bargaining agreement: a request for union elections by the union “Mineros”, an affiliate of IndustriALL, had been blocked for 6 years by the government authorities, the company and the protection contract union. And even when it had won elections in a mining site in April 2016, the company and the protection contract union had refused to abide by the official ruling published and continued to occupy the union facilities. She concluded that the Government had the obligation to respect Mexican workers’ rights and to implement freedom of association.

An observer speaking on behalf of the Confederation of University Workers in the Americas (CONTUA) said that there were persistent and serious government practices that were in violation of the Convention. Since 2015, the Committee had been asking the Government to resolve the issue of protection unions and to include the social partners in discussions on the subject. In 2017, the Committee had once again requested the Government to consult the social partners as serious concerns had been raised regarding the unclear measures that were being implemented. Again today, the Government needed to provide explanations to the Committee on why it was repeatedly failing to hold authentic, institutionalized and permanent tripartite consultations with the context of the transition process of the constitutional reform of the labour justice system, which was in violation of the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144). The obligation to hold tripartite consultations was the responsibility of the Government, which could not invoke national law to justify non-compliance with the Convention. Similarly, it could not claim to have organized consultations for the establishment of social dialogue with the most representative organizations of workers in view of the habitual, persistent and repeated corporative and anti-democratic trade union practices which were contrary to the interests of the workers. Consultations of that type did not reflect the real labour situation in Mexico. According to the official journal of the Senate, public hearings were to be held in May and June 2018, but in practice no public hearings were envisaged in the four regional offices. The hearings were supposed to contribute to the initiative submitted by the Government on 7 December 2017, through the CTM and the CROC, overlooking the other three legislative initiatives that had also been put forward, without any official measures being taken to convene the meeting. Proof of the Government’s deceitful practices was to be found in the request made by the President of the National Union of Workers (UNT) and the Secretary-General of the Union of Workers of the National Autonomous University of Mexico (STUNAM) who, in May 2018, had requested the Senate to indicate the place, date and time of the public hearing on the preliminary draft decree on the labour justice system, to which no reply had yet been received. The initiative would bring back the false system of tripartism, as it proposed the establishment of a Federal Institute of Labour Conciliation and Registration, a government body that would be composed of the following 12 members: four Government representatives, four worker representatives and four employer representatives. The institute would therefore reaffirm total corporative control, as four of the 12 members would be from national workers’ organizations, but only from those that were supposedly “most representative”. In other words, the Government of Mexico was persisting in the reinforcement of a protectionist and undemocratic type of unionism, which favoured some sectors while excluding the representation of others, which was contrary to the fundamental principles of the ILO, and particularly the Convention. Such actions perpetuated a system that undermined the well-being of Mexican workers, through the promotion by force of law of practices that were in violation of freedom of association. Finally, he urged the Government to ratify Convention No. 98 immediately.

The Government representative emphasized that many of the interventions had focused on the process of labour reform. Although the part of the constitutional reform that had already been adopted involved responsibilities for the various actors, including the federal Government and state governments, it was also true that the implementation of the secondary legislation would require the adoption of texts to enable both the judicial authorities (in relation to labour justice) and the decentralized body and conciliation centres to fulfil their functions. That process was under examination by the Senate, through four initiatives, which had not been rejected at the parliamentary level. The decision of the Senate, at the petition of many groups in Mexico, had been opened up for consultation, not only through the work of the legislative commissions, but also through the holding of consultation meetings. The measures taken to convene such meetings were to be decided on by the Senate. Nevertheless, the Government was committed to holding tripartite consultations with a view to the preparation of the secondary legislation, as a minimum level of agreement needed to be achieved in respect of that legislation to carry out the reform under the best conditions. For that purpose, during the course of 2018, the Secretariat of Labour, under the leadership of the Secretary of Labour, had held over 91 meetings with organizations of employers and workers. The will of the Government and of the State was to develop consensus with workers, employers and civil society organizations on the most appropriate approaches to the labour reform, taking constantly into account the rights of workers. However, he recalled that another fundamental aspect of the discussion lay in the reiterated references to the existence of protection agreements or contracts. Mexico had been cooperative in the specific cases in which problems of that type had arisen. In that regard, he emphasized that in the constitutional reform the issue of the origins of protection contracts had been taken into consideration and their relation to the Federal Labour Act, thereby avoiding problems such as recourse to strike action through the use of extortion. With reference to the registration of unions, he indicated that, in contrast with the indications provided by participants in their interventions, the federal authorities were currently responding to applications for registration within three or four days, which had resulted in the greatest increase known in Mexico in the number of union associations. There was also an online system at the federal level which included over 3,400 registrations of associations. In conclusion, he gave thanks to the members of the Group of Latin American and Caribbean countries for the efforts that had been made, which offered an incentive to continue making progress and to try and achieve as much as possible, within the context of compliance with the provisions of the Convention.

The Workers members welcomed the willingness of the Government to work to bring its law and practice in line with the Convention and hoped that this would be translated into concrete action. It was nevertheless regrettable that the Government did not accept the serious shortcomings of its current regulations and legislative proposals with regard to the Convention. The numerous problems encountered were rooted in the protection contracts system. In response to the comments made by the Government that it had for many years submitted detailed information and evidence to the Committee of Experts and the Conference Committee, the current discussion had once again provided specific examples demonstrating the impact of protection contract unions. That system had for many years seriously impeded the exercise of freedom of association and the freedom to bargain collectively. They challenged the statement that the issue of protection contract unions did not fall within the scope of the Convention. In fact, that phenomenon was closely linked to both Conventions Nos 98 and 87. The existence of protection contract unions constituted an obstacle to the establishment of free and independent unions. A member State was not in compliance with the Convention if it put in place or retained regulations which prevented workers from challenging the presence of protection contract unions and which restricted their ability to elect democratic and independent unions of their choice. The ability for workers to form and join a trade union of their choice and the ability of that trade union to represent, defend and promote the interests of its members through collective bargaining was at the heart of the Convention. The Government therefore needed to take all the necessary measures to put an end to the use of protection contracts. In that respect, they made a number of recommendations to the Government: (i) they invited the Government to submit information on the proposed legislation aimed at implementing the constitutional reform. It was essential for there to be consultation with all the social partners on that legislation, including independent trade unions. The Bill significantly affected the exercise of the right to freedom of association and its impact would be felt throughout the country and indeed the region; (ii) as the CABs had been incapable of guaranteeing freedom of association and the right to collective bargaining, they should be replaced by genuinely independent and impartial bodies to settle labour disputes and register unions and their collective agreements. The Government should also provide information on how it would guarantee the establishment of truly independent institutions, as well as the measures planned to ensure an efficient transition from the CABs to new independent bodies; (iii) the Government had to ensure that there was transparency and genuine access to information regarding the registration of trade union organizations and the collective agreements concluded. The Government should communicate any information in this respect; (iv) workers wishing to exercise their right to freedom of association and to collective bargaining had to be able to do so and, where appropriate, effectively and expeditiously challenge the validity of protection contract unions and the agreements they had negotiated; (v) they urged the Government to apply the existing law and ensure that outsourced workers were not used to interfere with the exercise of the right to freedom of association and the right to collective bargaining; (vi) the proposed legislation also removed basic safeguards concerning dismissals and redundancy. The Government had to protect workers from arbitrary dismissals and retaliation for their trade union activities. The same was true for collective redundancies; and (vii) the Government should explicitly repeal the restrictions on trade union pluralism and the free election of trade union leaders. Finally, they urged the Government to put an end to violence against trade unionists, including those engaging in social and political issues, which was part of their function as trade unionists, by ending the reign of impunity for those crimes. Those responsible, both the material and intellectual authors, had to be arrested and brought to justice. Failure to do so only further invited the use of violence, including murder, by some employers and their agents in industrial disputes. In order to comply with those recommendations, and given the significance of the issues being discussed, they urged the Government to seek technical assistance from the ILO on the draft legislation and to accept a direct contacts mission. This case should be included in a special paragraph of the Committee’s report.

The Employer members thanked all those who had spoken during the discussion, which had been rich in information and diverse in opinions, thereby demonstrating the option of putting forward open and frank positions on the various aspects of the case. The additional responses provided by the Government had reaffirmed many of the points contained in its initial statement, and had also clarified points made previously by the Employer members. The positions of various Worker representatives reflected a number of viewpoints and approaches which, as the Employers had noted previously, might go beyond the scope of the Convention. The Committee of Experts had referred in its observation to Case No. 2694 of the Committee on Freedom of Association. In its June 2017 report, the Committee on Freedom of Association had drawn a distinction between general issues and specific allegations. The general issues covered all the legislative aspects that were before the Committee of Experts and the Conference Committee, and which had indeed been discussed today. However, the specific aspects that might be connected with Convention No. 98 were being analysed by the Committee on Freedom of Association in a more detailed evaluation of many of the aspects that had been referred to today by the representatives of the different sides. Hence, neither the Conference Committee nor the Committee of Experts needed to address aspects relating to the principles of collective bargaining. For that reason, the subject of collective bargaining systems was not part of the discussion and should be completely excluded from the considerations and conclusions of the Conference Committee. The Government had referred to a labour inspection protocol on free collective bargaining, which enabled labour inspectors to perform many different duties and provided protection for many workers in Mexico. Moreover, the Government had referred to the trade union consultation system, indicating that it had received over 1 million visits and contained detailed information on over 3,400 union associations, which responded to the Committee’s concerns regarding the registration and information system. The Government has also indicated that a decentralized public body was being established as part of the constitutional reform, which would include administrative, organizational, technological and logistical tools for its implementation. In addition, more than 91 meetings had been held with representatives of workers, employers, academics and associations of lawyers, as well as the public hearings decided upon by the Senate to give effect to the new legislation and the four legislative initiatives or proposals. A whole process of change was taking place through extensive social dialogue, as promoted by the ILO. The establishment of independent labour tribunals, with a specific budget for their operation, was all part of a process involving the implementation of clear and specific measures. The Government had responded repeatedly to the various concerns expressed by both the Committee of Experts and the Conference Committee. With regard to civil liberties and trade union rights, the Government had provided information from a number of independent bodies on various acts of violence that were unrelated to freedom of association, which meant that there was no need to provide further details. Consequently, with regard to the request by the Committee of Experts for the Government to provide comments on those acts of violence, it should be considered that the information had already been provided, and that no further information was required. Concerning the constitutional reform and the recommendation for the Government to take further measures and to hold tripartite consultations on the reform, the Employer members considered that it would be appropriate for the Government to include that subject in the report to be submitted under article 22 of the ILO Constitution, but not in an additional report or in one to be provided earlier than usual. The subject of representation and protection agreements or contracts would be analysed by the Committee on Freedom of Association, and the Government should refer to that Committee for further detail. The Employer members therefore considered that the conclusion concerning the possibility of the Government adopting measures for that purpose in conjunction with the social partners was a matter to be addressed by the Committee on Freedom of Association, not the Conference Committee. With reference to the publication of trade union registrations, the information system already existed and provided comprehensive information. The conclusion calling on the Government to continue providing information on compliance with its obligation to publish information on trade union registrations and constitutions was also not therefore indispensable. Finally, the Employer members considered that many issues relating to the legislative reform, in light of the Government’s explanations and the case law, were no longer applicable and that the request by the Committee of Experts for the Government to take steps to amend the restrictive provisions of the Federal Act on State Employees was no longer required. Nor was it appropriate to call for measures to be taken to amend section 372 of the Federal Labour Act, which prohibited foreign nationals from being members of trade union executive bodies, in order to ensure that right was set out explicitly. The conclusions should therefore be aimed at ensuring the provision of additional information as part of the regular reporting in accordance with the general procedures relating to the supervision of any Convention. The Employer members considered that the case could be closed.

Conclusions

The Committee took note of the written and oral information made by the Government representative and the discussion that followed.

The Committee also noted the prior discussion of this case in the Committee, most recently in 2016.

Taking into account the Government’s submissions and the discussion that followed, the Committee encouraged the Government to:

- continue to pursue further legislative action envisaged in the context of the Constitutional reform in continued consultation with the social partners at national level;

- ensure, in consultation with the social partners, that the secondary legislation required to enact the reforms to the Constitution and federal labour law are in conformity with the Convention;

- continue to fulfil its existing legal obligation to publish the registration and statutes of trade unions, as well as existing collective agreements; and

- ensure that trade unions are able to exercise their right to freedom of association in law and practice.

The Committee invited the Government to report in detail on the measures taken to implement these recommendations to the next meeting of the Committee of Experts in November 2018.

The Government representative expressed appreciation to the Committee for the constructive and open dialogue that had taken place. She had listened particularly carefully to the comments made and issues raised during the debate and to the conclusions presented, which would be duly evaluated and taken into account by the authorities. She also reaffirmed the Government’s commitment to fundamental principles and rights at work and to the promotion and attainment of decent work. Social dialogue was the best tool to identify actions that would ensure the continued application of fundamental principles at work, especially the principles laid down in the Convention. Mexico reiterated its commitment to social dialogue and to the ILO supervisory mechanisms which helped to strengthen that dialogue. To that end, it would respond to the requests for information promptly and appropriately.

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A Government representative, citing the progress that his country had made, emphasized the commitment of the Government to freedom of association. Regarding the question of transparency in the registration of trade unions, he said that the number of local boards of federal bodies that had published lists of the registration of trade unions on their website, as required by law, had increased from two last year to 20 in 2016, and eight others were well on the way to doing so. With regard to the legislative and practical measures that had been taken for free collective bargaining and to guarantee the representativity of trade unions, the President of the Republic had, on 28 April 2016, submitted a major proposed reform of important aspects of the Federal Labour Act. In relation to the registration of collective labour agreements, the proposed reform provided that, before they could be registered, the authorities must confirm that a labour centre genuinely existed, that the workers were protected under the agreement, that they had received copies of the agreement and been fully informed of its content, and the status of the trade union that had promoted it. On the subject of the legal status of labour agreements, the proposal set out clear rules for conducting a recount election so as to ensure that the votes regarding the status of labour agreements were free and democratic. From the practical standpoint, the National Conference of Secretaries of Labour had issued a joint statement in June 2015 on two important aspects: (i) a categorical rejection of protection contracts; and (ii) a commitment to take firmer action against acts of simulation, which constituted a violation of freedom of association. In September 2015, the Federal Conciliation and Arbitration Board had adopted a set of good practice criteria for the conduct of recount elections, in order to ensure that each worker’s ballot was personal, free, secret and direct. In February 2016, a new labour inspection protocol had been prepared on free collective bargaining, under which labour inspectors were empowered to enter workplaces and interview workers directly, so as to ascertain that they knew which their trade unions were and which collective agreements applied to them. With regard to trade union pluralism in state departments, he welcomed the conclusions of the Conference Committee that legal restrictions did not apply, and that this did not pose a problem in practice. The Conference Committee had also recognized that the prohibition on foreign workers being on trade union executive boards did not apply either. Moreover, no specific case had come to light and no complaint on the subject had been lodged. On the contrary, some union by-laws expressly recognized the possibility of foreign workers to hold union office. With regard to the Committee’s concern relating to conciliation and arbitration boards and the need for them to be independent, autonomous and devoid of any conflicts of interest, the President of the Republic had submitted a constitutional amendment to the Constituent Assembly on 26 April 2016 which marked an important precedent and a turning point for the country. The proposed amendment provided that labour justice would in future be the responsibility of the judiciary, and would no longer be dependent on the executive and would not be of a tripartite structure. At the same time, conciliation machinery was to be strengthened. The proposed amendment would also provide for the establishment of an autonomous body responsible at the national level for the registration of collective labour agreements and trade unions. The head of that body would be proposed by the President and approved by the Senate to ensure transparency and autonomy. These reforms were the outcome of an extensive participation process at several levels and of broad social dialogue. The Government was therefore showing its determination to make the necessary changes to guarantee freedom of association and trade union autonomy, and it thanked the ILO for its collaboration in bringing about those changes.

The Employer members recalled that this subject was being discussed by the Conference Committee for the second year and that there were similarities with the previous year. Mexico had not ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). However, there were elements in the observation and direct request of the Committee of Experts on this case that created confusion between these Conventions. The observation referred to various matters: the murder of rural workers’ leaders; protests by workers from various sectors; the registration of trade unions; the representativity of trade unions and protection contracts; trade union pluralism in state bodies and the possibility to re-elect trade union leaders; elections of foreign nationals as trade union leaders; and conciliation and arbitration boards (which was also examined in Case No. 2694 of the Committee on Freedom of Association). The direct request, which was not included in the report of the Committee of Experts, addressed the issues of trade union registration, accreditation of trade union representatives, the right of workers’ organizations to organize their activities and formulate their programmes, and the proposal to amend the legislation concerning strikes. With regard to the right to strike, the Employer members recalled their reservations concerning the content of this right in Convention No. 87. They indicated that 40 of the 50 observations relating to the Convention in the 2016 report of the Committee of Experts referred to the right to strike. In 12 of the 16 cases in which the Committee of Experts made no reference to the right to strike in an observation, it did so in a direct request. In addition, of the 50 total direct requests relating to the Convention, 41 referred to the right to strike. The Employer members emphasized that the direct requests were not subject to tripartite oversight. Despite the fact that paragraph 36 of the report of the Committee of Experts explained the difference between observations and direct requests, and that the Chairperson of the Committee of Experts had stated that it followed these criteria carefully, it was necessary to clarify this difference and to review, with the support of the Office, the functions of the Committee of Experts in its various types of comments.

With respect to the progress made by the Government, the Employer members noted positively that the local boards of the 20 federal entities had published the trade union registers online, and a further eight were following suit. They also noted the various laws that had been adopted recently and requested the Government to clarify the scope of the General Act on transparency and access to public information of 4 May 2015. They warmly welcomed the rejection of protection contracts, according to a statement of the National Conference of Labour Ministers, as well as the reform of labour inspection which would help to combat practices such as the “note-taking” procedure mentioned in the direct request and to make progress in practice. With respect to trade union pluralism in state bodies and the election of foreign nationals to trade union executive bodies, despite the fact that the respective legislative restrictions had no effect, social dialogue should be stepped up. They also welcomed the draft constitutional reform, particularly because it clearly determined the competence of the judicial authorities to settle disputes in relation to collective bargaining between employers and workers. However, it was unclear, and the Government had not referred to the issue, whether and in what manner the employers were invited to participate in discussions on this reform process, and how they would be involved and consulted on this matter in the future. The Employer members urged the Government to intensify social dialogue over the coming months. With regard to the murder of rural workers’ leaders, an issue noted once again in the observation of the Committee of Experts, it was now clear that this question was not related to freedom of association, and therefore this point should not be dealt with subsequently. Turning to the protests by workers, further information was needed on the matter. Significant progress had been made in this case, and they therefore suggested that the conclusions should only include an invitation for more in-depth social dialogue.

The Worker members said that in 2015 the Conference Committee had reviewed the Government’s failure to comply with the Convention and concluded that it should, among other action, identify in consultation with the social partners additional legislative amendments to the 2012 reform of the Labour Act necessary to comply with the Convention, including the reforms needed to prevent the registration of protection unions. A protection contract was a collective agreement, signed between an employer and an undemocratic union, and which was only recognized by the employer. In most cases, workers had no knowledge of the existence of such an agreement until they tried to establish a union of their own. Management would then inform the workers that they were already members of a union and were covered by an agreement they had never seen or ratified. The main purpose of the protection contract system was to reduce wages and to prevent workers from enjoying democratic union representation. This system, which gave employers broad discretion to fix wages, working hours and conditions of work, had been maintained by State Conciliation and Arbitration Boards. The conciliation and arbitration boards were widely known to be biased against the legal rights and interests of democratic unions, and their decisions were influenced by the representatives of employer-dominated unions. Realizing that the protection contract system led to greater industrial strife and refusing to be associated with such a system which violated the right to freedom of association in supply chains, eight international garment brands had sent a joint letter to the Government in 2015 urging it to do away with the system. In April 2016, the President of the Republic had sent the proposed reforms to the Constitution and the Federal Labour Act to the Senate, which would in effect: (i) eliminate the conciliation and arbitration boards and transfer their legal functions to the judicial branch, thereby bringing all labour disputes to one mandatory conciliation hearing; (ii) bring the administrative functions of the conciliation and arbitration boards under a new decentralized federal entity; (iii) require that, before a collective bargaining agreement could go into effect, the labour authorities would verify that the company was operational, that it had workers and that these workers had received copies of the agreement and supported it; and (iv) establish tight time frames for each step in the election process to determine which union controlled the collective bargaining agreement. These reforms were also supported by some employers’ organizations. Referring to the long procedure and considerable time that would be taken by the Senate to approve and adopt legislative and constitutional reforms, the Worker members urged the Government to take all the necessary measures to ensure that these reforms were approved at the earliest possible time.

Protection contracts continued to dominate the industrial relations system and recent efforts by democratic unions to hold recount elections to remove protection contract unions had faced opposition and procedural irregularities. They referred to the example of an independent organization which had faced down a major automobile manufacturer and the protection contract union and had lost the election for union representation during the recount election in 2015, following a series of procedural irregularities. Moreover, aggressive anti-union campaigns by employers remained common in the country. In late 2015, 120 workers who had sought to establish a union at a factory in Ciudad Juarez which produced laser printer cartridges for a United States based company, had been dismissed following a strike for an increase in wages. The 2012 amendment to the Federal Labour Act, although aimed at providing greater flexibility in employment by replacing pay per day by pay per hour, had led to reduced job creation and an increase in temporary jobs, while wages and working conditions had deteriorated. Although the law prohibited companies from outsourcing a worker who had been assigned to perform a core function in the company, a 2015 report on the electronics sector had found that approximately half of the workers who performed core functions were outsourced and hired through temporary agreements. The use of outsourcing was a common tactic to avoid unions or to replace unionized workforces with contract workers. The courts had significantly narrowed the right to strike by allowing employers to nullify collective bargaining agreements under the theory of force majeure. The courts had challenged the constitutionality of sections 465 and 937 of the Federal Labour Act, which allowed workers to submit a request to strike to the Federal Labour Board for binding arbitration. This must be addressed through appropriate legislation. The Worker members recalled that the issues raised had been before the ILO supervisory system for many years and they hoped that the Government would take proactive steps: (i) to resolve issues related to protection contracts; (ii) to ensure that conciliation and arbitration boards did not collude with employers or protection contract unions to frustrate the ambitions of democratic unions to represent workers; (iii) to sanction those employers engaged in anti-union discrimination; and (iv) to amend other aspects of the law which the Committee of Experts had been commenting on for several years.

A Worker member of Mexico considered that the Government was engaged in a reform process with the aim of gradually being in compliance with the Convention and had provided the information requested of it, which was updated on the Internet. The Government had been making this change despite financial limitations, as the budget for state departments, including the Department of Labour, had been cut. In Mexico, exercising freedom of association was the prerogative of every worker and consequently every worker could choose which trade union organization to join. The fact that a collective labour agreement was limited to including what was established by law did not make it a protection contract. Of course, it was necessary to identify those who made undue use of protection contracts to avoid workers’ rights. The Federal Labour Act established the procedure for the acceptance, registration and cancellation of collective labour agreements, as well as applications for recognition as a bargaining agent, and for workers to choose the union that they wished to join. It was wrong to claim that protection contracts enjoyed the support of workers’ organizations, as it was the boards which accepted or rejected a collective agreement, observing whether or not it was in line with legal provisions. In conclusion, he referred to the legislative initiative introduced in the Senate. He observed that the opinions of workers and employers had not been taken into account. The conciliation and arbitration boards were tripartite in nature. The initiative attempted to judicialize these boards, with the courts becoming responsible for dispensing justice, thereby entirely removing the participation of worker and employer representatives and tripartism from the process.

The Employer member of Mexico began by referring to the working methods of the Conference Committee. He considered that, while there had been some positive changes, there remained areas in which more progress was needed to improve effectiveness. From a reading of the report of the Committee of Experts, it appeared that there were many issues that required prompt intervention by the Committee but, despite that, priority was given to cases where this was not so, or which had already been examined at previous sessions, with replies, explanations and commitments that were followed up in reports. This carried the risk of the repetition of observations and arguments, rather than constructive dialogue. It would be preferable to follow-up on the commitments made through the provision of reports and to give the States a reasonable time to comply with their commitments, after which compliance could indeed be required where adequate measures had not been taken and the progress achieved could be recognized. He observed that Mexico had not ratified Convention No. 98 and that the Committee should therefore not refer to matters related to collective bargaining in its conclusions. Similarly, it should refrain from dealing with issues relating to strikes which, despite the insistence of the Committee of Experts, were not endorsed by the Conference Committee. He considered that there were few new elements requiring immediate analysis. With regard to the murders of rural leaders, while they were regrettable, it had already been established that they were not workers, as had been recognized by the Committee. He said that, as the alleged acts of violence against trade unionists had only been reported recently, although not yet proven, a report had just been requested from the Government. On the issue of trade union pluralism in state departments, the explanation had been provided that this had been dealt with by case law, and that various trade unions and collective contracts existed. In relation to the functioning of the conciliation boards, he recalled that this topic that had been under consideration in Mexico for a long time, and tripartite consultation forums had even been set up. However, the issue was new for the Conference Committee, and therefore a report had recently been requested from the Government, which had explained that a legal and constitutional initiative had been introduced that would allow the problems to be addressed which had been identified in an April 2015 study. Unfortunately, employers had not been invited to take part in this study, nor in the work carried out prior to the initiative being introduced. He trusted that the legislative process would include the participation of workers’ and employers’ organizations for the purpose of effective social dialogue and discuss new provisions required to regulate procedural aspects and issues resulting from the constitutional reform. It was important to have sufficient time for the content of the legislative reform initiative to be examined through tripartite dialogue. With regard to transparent trade union registration, as it had been informed, the draft reform contained provisions that would guarantee that this objective would be achieved, for which purpose new institutions would be required, which would require constructive and participatory social dialogue. He trusted that the Conference Committee would understand the implications of tackling a challenge of such magnitude and would allow sufficient time. In conclusion, he said that, in the report of the Committee of Experts, issues were raised which simply did not exist, which merely reflected the statements made by certain organizations with the sole purpose of creating trouble. The real problems raised were being addressed and progress had been made. The legislative reform initiative recently introduced by the Government presented great opportunities and challenges and would require study, planning and action within a framework that guaranteed social dialogue.

The Government member of Panama, speaking on behalf of the group of Latin American and Caribbean (GRULAC) countries, expressed appreciation for the information supplied by the Government concerning the follow-up given to the observations of the Committee of Experts and took note of the progress made with regard to the application of the Federal Labour Act in relation to the publication of registrations, trade union statutes and collective agreements with a view to strengthening the transparent and democratic functioning of the industrial relations system. She also expressed interest in the initiatives to reform the Constitution and the Act, which involved a fundamental change in the labour justice system, particularly the transfer of the administration of labour justice to the judiciary, the creation of local conciliation centres and the creation of a specialized body for the registration of collective labour agreements and trade unions and for conciliation at federal level. Wishing the Government success in those reforms, she welcomed its openness and willingness to continue promoting frank and open social dialogue. Reiterating GRULAC’s commitment to respect for freedom of association, she trusted that the Government would continue taking steps to comply with the Convention.

The Government member of Spain, endorsing the statement made by GRULAC, acknowledged with interest the progress and efforts made in relation to the publication by Mexican state departments of the registration and by-laws of trade unions and collective agreements so as to comply with the goals set out in the Federal Labour Act, in the interests of strengthening governance and respect for trade union autonomy. He emphasized the historical significance of recent initiatives to amend the Constitution and the Federal Labour Act so as to transform the administration of labour justice with a view to strengthening the free exercise of individual labour rights. A paradigm shift was occurring, in which labour justice would be administered by federal or local judicial authorities, with conciliation procedures would become more flexible and effective through the creation of specialized and independent local conciliation centres and a decentralized body would register all trade unions and collective agreements, in addition to having conciliation at the federal level. He trusted that the effective implementation of this paradigm shift, in consultation with the social partners, would contribute to a significant change in the protection of labour rights and the goal of decent work.

The Worker member of Germany expressed great concern at the violations of the Convention in Mexico and particularly at the practice of protection contracts, which unfortunately also involved German employers. Protection contracts were contracts through which pseudo-unions torpedoed any action to achieve better wages and working conditions. These so-called protection unions were instructed by management to conclude agreements with the company. On paper, all employees were members of the protection union, without knowing it. Protection contracts agreed to without the participation of the workers, pressed wages to the lowest level, and unscrupulous individuals were paid by companies to keep away militant unions. Unfortunately, several German enterprises were among these companies. By binding workers to the protection union, they could not establish other independent unions and had to give up any hope of the negotiation of improved collective agreements. Workers who organized themselves in order to achieve better pay and working conditions faced intimidation and repression. Once the protection contract entered into force on paper, the labour courts, employers and local governments regulated everything else to prevent an independent union being able to push through a genuine collective agreement. Workers trying to defend their rights were portrayed as troublemakers and ran the risk of being placed on a blacklist by the company. Those who tried to leave the protection union lost their jobs. Protection contracts granted huge freedoms to the company in terms of hiring and firing, outsourcing and temporary employment, and were sometimes concluded before the plant even commenced operation. The number of protection contracts was on the rise, with about 80 per cent of collective agreements in Mexico being concluded as protection contracts. International companies from Europe should lead by example rather than concluding contracts that undermined workers’ rights, including the right to strike enshrined in the Convention. He called for the abolition of protection contracts in Mexico and regretted the absence of investigation of the death of the 43 students in 2015.

The Government member of the United States recalled that the case had been discussed in 2015 by the Committee, which had requested the Government to take specific steps to address persistent challenges related to, among other issues, the administration of labour justice and protection unions, including through legal reforms and in consultation with Mexico’s social partners. Later that year, the Government had launched a consultative process to develop proposals that would improve the country’s everyday justice system, including labour justice. On 28 April 2016, the President of Mexico had introduced to Congress a justice reform package that represented the culmination of that process, encompassing labour reforms through which the Government was affirmatively seeking to address concerns about freedom of association and collective bargaining that had been voiced for decades by Mexican workers and the ILO supervisory machinery, including by the Conference Committee. She applauded the introduction of such historic reforms, which included constitutional amendments that would fundamentally transform and modernize the Mexican labour justice system. The responsibility for resolving labour cases would be transferred from the Conciliation and Arbitration Boards to new specialized labour judges in the Mexican judicial system, and the registration of unions and collective bargaining agreements would be transferred to a newly created, independent entity. Such changes would help to guarantee a fair, transparent, objective and efficient labour justice system in Mexico that upheld workers’ rights to organize and bargain collectively. In addition, the planned labour law amendments would: help address long-standing concerns about protection unions by requiring a demonstration of worker support before registering collective agreements; and impose tight time frames for union elections that determined exclusive bargaining representation, thereby helping to address concerns about the lengthy delays in the union election process. She looked forward to the expeditious adoption of these transformative labour reforms by the Mexican Congress and to the subsequent approval of the constitutional amendments by the Mexican states, and hoped that they would be adopted, as introduced, and effectively implemented without delay.

An observer representing IndustriALL Global Union considered that the Government was pursuing an unequal and exploitative labour policy based on the system of employers’ protection contracts. The wages of Mexican workers were currently the lowest in Latin America, and were 40 per cent lower than wages in China. Whenever Mexican workers discovered that they were victims of a system of protection contracts, they would first ask why the trade union did not represent them and then face opposition from the entire network of complicity, corruption and control which did not allow them to organize freely and democratically. To be able to replace the protection union with an independent union, they had to file an application with the labour authorities for recognition as the bargaining agent, which would involve a voting process in which they chose the trade union of their preference. However, in practice, this process was very far from the one established in the labour legislation, the Constitution and the Convention. The process could take years due to deceit and malpractice by the authorities, enterprises and trade unions. For example, applications for recognition submitted in the mining sector and other sectors of the economy had taken between three and five years. In the case of one automobile enterprise, it had taken almost five years for the ballot to take place, and when it had eventually been held, the workers had been threatened by staff from the enterprise and by armed police, and the enterprise had selected which workers could vote. In most cases, workers who had expressed their preference for an independent trade union had been dismissed, threatened or beaten. Workers in the mining sector had been victims of “industrial homicide” in the Pasta de Conchos coal mine, where 65 miners had lost their lives in February 2006, and the enterprise remained unpunished with the complicity of the Mexican authorities. Furthermore, miners had been killed or injured in attacks by “shock groups” that were in collusion with the public security forces. The number of trade unionists who had been arrested arbitrarily or were in prison continued to grow. Cases included Juan Linares, who had been held in custody for over two years; Gustavo Labastida, who had been imprisoned for almost a year; and Jose Luis Solorio, who had been detained in a security centre for three days. In the mining sector, there were no trade unions that defended or represented the rights of workers. In conclusion, he urged the Government to ensure respect and justice for the workers and uphold their dignity.

Another Worker member of Mexico considered that, despite the information provided by the Government, there were still many issues to be addressed with a view to achieving compliance with the Convention. He criticized the functioning of the conciliation and arbitration boards, at both federal and state level, and particularly the way their members were appointed and the way in which cases were handled, which demonstrated serious structural problems. Freedom of association was undermined partly because of the situation of complicity between the Government, the employers’ and workers’ organizations. He also questioned the use of austerity plans. He hoped that the Government would take this opportunity to establish an authentic industrial relations system in Mexico, based on social dialogue between the employers’ representatives and democratically elected workers’ representatives. In the meantime, however, the Government should take measures to guarantee that workers could exercise their right to freedom of association in practice, under the existing law.

The Government member of Panama endorsed the statement by GRULAC and welcomed the information provided by the Government, in which it had expressed its utmost willingness and determination to comply fully with the Convention. The information presented contained the necessary clarifications and explained the measures that had been adopted with regard to freedom of association, such as the right to freely elect trade union representatives, the right of re-election, and the publication of the registers and statutes of trade unions by the conciliation and arbitration boards. She expressed her support for the reform initiatives of the Constitution and the Federal Labour Act, which the Government had introduced with a view to making a significant reform of the labour justice system, the conciliation services and the register for collective agreements and trade unions, as well as for the constant open dialogue with the social partners. In conclusion, she wished the Government every success in its efforts to give full effect to the Convention.

The Worker member of the United States, also speaking on behalf of the Worker members of Argentina, Brazil, Canada, Chile, Colombia, Ghana, Guatemala, Honduras, Mali, Nigeria, Swaziland, Uruguay and Zimbabwe, as well as the Confederation of University Workers of the Americas (CONTUA), recalled that in 2015 the Committee had heard how thousands of migrants in Baja California, working in conditions of modern slavery, had organized, formulated a programme of activities and gone on strike to defend their social and economic interests, bringing employers and the Government to negotiate and sign agreements in May and June. That exercise of freedom of association, including a strike, had taken place as a struggle against the failed national labour justice system and entrenched company-dominated unions that had long misrepresented most Mexican workers using protection contracts. These workers and those in two other states produced 85 per cent of Mexico’s berries, with over 90 per cent of the crop going to the United States, and 80 per cent of that being sold by major brands. The supply chain had grown rapidly and with no enforcement of basic workers’ rights, yet it was projected to be Mexican agriculture’s highest value export, already producing 30 per cent of the berries in the world, that were currently valued at 1.5 billion dollars, with the expectation that they would reach 3 billion by 2020. A year after the agreements had been signed by employers and the Government, the Mexican berry workers leaders were stating that conditions and pay remained the same, violations of the law continued, workers and their families were still excluded from social security, healthcare, housing and education, employers and the Government continued to make hollow agreements with organizations that they, and not the workers, chose. Since the latest agreement merely summarized existing commitments to farmworkers in Mexico, without committing sufficient resources, the union representing those who had gone on strike and had negotiated in San Quintin had refused to sign. Despite being incomplete, as they failed to address problems in the public sector, the Government’s proposed reforms to the labour justice system were a positive development, addressing demands that independent unions had long made. However, the Government still needed to take full responsibility for these reforms and use its political will to ensure that they were rapidly approved and implemented, as it would otherwise lose credibility. Given the experience of the previous year, there was a justified distrust that the proposals would actually become law and be implemented. To gain support and trust nationally and internationally, the Government should adopt the principles of impartiality and transparency that the reforms could represent by resolving many long-standing and well-documented labour violations, such as those of the San Quintin farmworkers. Without real reform in law and practice, Mexico would be in violation of the Trans-Pacific Partnership Agreement (TPPA), which contained a strong commitment to the core Conventions, including Convention No. 87, from the moment of its entry into force.

The Government member of Honduras endorsed the statement by GRULAC and expressed his support for the measures adopted by Mexico with a view to achieving compliance with the Convention. He took note of the action taken by the Government, particularly in relation to the publication of the registration of trade unions, the plan to transfer the administration of labour justice to the judiciary, the establishment of conciliation centres to render conciliation processes more flexible and the procedures for the registration and deposit of collective labour agreements. He urged the Government to continue to develop new mechanisms for dialogue with the trade unions in the context of the current reform initiatives, in accordance with the Convention and for the benefit of workers’ fundamental rights, with a view to guaranteeing observance of the exercise of freedom of association in the country.

An observer representing the International Transport Workers’ Federation (ITF) called on the Government to intervene as a matter of urgency to end the situation faced by Benito Bahena y Lome, General Secretary of the Alliance of Tram Workers of Mexico (ATM) and executive board member of the ITF, who had been persecuted over the previous 12 months by the local state-owned transportation company for reporting violations of workers’ rights and denouncing a lack of investment in public transport. In addition to being dismissed from his job, he had been physically and verbally intimidated and forcibly denied entry to his union office. In an attempt to further paralyse the union, the company was refusing to remit union dues through the check-off system. Not even a court ruling confirming Bahena y Lome as the legitimate leader of the ATM had stopped such violations of trade union rights. He associated himself with the concern and indignation expressed by IndustriALL regarding the continued and widespread practice of employer protection contracts in all industrial sectors in Mexico, which deprived workers of any right to demand safe working conditions, labour inspections, compensation or social security. Every announcement of new foreign investments in the country came with a perfectly tailored protection contract, also conveniently advertised on the Internet. In all the cases mentioned in Case No. 2694 of the Committee on Freedom of Association, the protection contract had been signed in the same week as the investment had been announced, long before the plant had been constructed or the workers employed. The protection contract system had tragic consequences, notably an explosion in the Pajaritos petrochemical plant in Veracruz on 20 April 2016, where companies and government agencies had denied responsibility for the over 130 workers injured and 32 subcontracted workers killed, leaving the bereaved families without compensation. Also in Tlaxcala, a well-known transnational shoe and garment company had closed without following due process, dismissing 450 workers and refusing to pay proper compensation recognizing the, on average, 25 years of service of the workers. When the union had picketed the plant to stop the removal of the machinery, the State Governor had stepped in and supported the company to press false charges against the union leaders, pressure the workers to accept a substandard redundancy package and arbitrarily imprison the union’s General Secretary for over nine months.

The Government member of El Salvador endorsed the statement made by GRULAC and thanked the Government for the detailed information provided. She acknowledged the progress Mexico had made towards applying the Convention, particularly with regard to the publication of trade union registrations and collective labour agreements, the proposed draft reform of the Constitution and the Federal Labour Act, the plan to transfer the administration of labour justice to the judiciary, and the creation of local conciliation centres to facilitate conciliation procedures. She noted Mexico’s commitment to freedom of association and expressed her belief that the Government would continue to implement policies aimed at guaranteeing respect for the exercise of freedom of association in the country and compliance with the Convention.

The observer representing the Confederation of University Workers in the Americas (CONTUA) denounced the violence against trade unionists experienced in Mexico, including in the mining, telephony, footwear, electricity and education sectors. Far from coming to an end, the violence had increased in recent years. Trade union activities were ever more risky, against a background of complex social violence in which state corruption and drug crime were intertwined and social groups were victims for lack of protection, as in the case of the 43 Ayotzinapa students who had been murdered. So-called protection contracts made a real mockery of social representation and collective bargaining. No progress had been made in removing this illegitimate concept that the Committee of Experts had described as a simulation of collective bargaining. The Government had provided information on supposed plans to abolish this practice, but no progress had been made in this respect, and the ILO should intervene actively to reach a solution that would bring an end to such contracts. The labour situation in Mexico was becoming worse. Mexico’s ratification of the TPPA and the continuing negotiations on the Trade in Services Agreement (TISA) would signify a clear step backwards in the area of labour rights, as they meant that ILO Conventions would become subordinate to trade rules. As a result of the TPPA negotiations, the Government was pressing on with an initiative to introduce labour reforms, demonstrating the executive’s need to present a proposed legislative amendment that met external requirements. The Government was trying to push through an expeditious reform process but, faced with the pressure of complaints and action by national and global organizations, it had been obliged to begin a process of negotiations. The official reform proposals did not provide a definitive solution to the problem of protection contracts, nor did they meet demands to eliminate state control over trade unions, which impeded the exercise of freedom of association, genuine collective bargaining and the right to strike, which was restricted for state employees by Article 123B of the Constitution. The executive’s proposal maintained the contested National Minimum Wage Commission, which had impeded urgent measures to restore the purchasing power of wages. In conclusion, he observed that the Government did not have the true will to make the changes necessary to achieve freedom of association. On the contrary, there was evidence of an attempt to impose more flexible rules, which allowed market rules to gain ground without guarantees of respect for the rights of workers, social equity or the equitable redistribution of wealth.

The Government representative thanked all the participants in the discussion, and indicated that all the comments and observations would be taken into account in the labour legislation reform process that was being carried out. The Government was committed to giving priority to social dialogue in this process. With regard to the criticisms that the employers and workers had not been consulted during the preparation of the draft reforms, he indicated that they were only a proposal. The details were not known because it was a recent proposal, which reflected the comments made by the employers and workers in various areas. It was now necessary for all social partners to participate so that the reforms could be refined. Employer and worker representatives would be heard for that purpose. The Government had always supported the involvement, opinions and participation of all sectors in the major changes in the country, including those relating to labour. The Government had the political will to make amendments to the draft that were necessary to give effect to the reforms. He noted that it was necessary to amend some aspects of the current labour legislation. While priority was given to form in current labour legislation, the objective was to adequately address questions of substance. That was why reforms were needed. The Government did not concur with some of the observations made during the discussions. With regard to the existing legal obligation to publish the registration of trade union by the local boards of the 31 states in the country, it needed to be taken into consideration that the digitalization of a system with that amount of information took time. With respect to outsourcing, he considered that the problem arose when it was used with the intention of evading labour law. Finally, he expressed Mexico’s commitment to continue making progress in the reform and adoption of measures to bring labour law and practice in Mexico fully into line with the provisions of the Convention.

The Worker members welcomed the information provided by the Government and the constituents. The Government had an important and historic opportunity to create an authentic industrial relations system in the country based on social dialogue between employer representatives and democratically elected worker representatives. That was indeed the foundational and guiding principle of the ILO system, enshrined in the ILO Constitution of 1919. Without authentic representativity and representatives, there would be no social justice and consequently no lasting peace as evidenced in practice in Mexico and elsewhere. They referred, by way of example, to the thousands of teachers of the National Coordination of Education Workers (CNTE) who had marched against the education reforms depriving teachers and professors of their right to freedom of association. The Worker members once again welcomed the proposals put forward by the President of Mexico, which addressed many concerns, and urged their adoption as soon as possible, while emphasizing that, in the meantime, the Government should take measures to ensure that workers could exercise their right to freedom of association in practice under existing law. As indicated during the discussion, companies regularly continued to violate that right with impunity. In conclusion, the Worker members urged the Government to: (i) fulfil without delay its existing legal obligation to publish the registration of trade unions in the local boards in the 31 states of the country; (ii) enact the reforms to the Constitution and Federal Labour Act, as proposed by the President; (iii) ensure that the legislation prohibited the use of agency labour to perform the core functions of an enterprise, which had undermined the ability of workers to establish or join a union; and (iv) produce a detailed report on the progress made to comply with those recommendations by the next session of the Committee of Experts.

The Employer members thanked all the speakers for their comments and the Government for providing very detailed additional information in a constructive manner. Progress had been made on many of the issues raised by the Committee of Experts, as other speakers had acknowledged. Other topics would continue to be reviewed with a view to moving forward, such as the representativity of trade unions and protection contracts. In this regard, they emphasized the need to have the widest possible representativity as a necessary requirement for strengthening the trade union movement. Concerning the difficulties of registering trade unions, they welcomed the information from the Government that 20 institutions now had an electronic register, and also praised the inspection protocol on freedom of association. They expressed their enthusiasm at the changes to the conciliation and arbitration boards, namely the introduction of measures to guarantee that in future labour justice would be dispensed by the judicial authorities, which would guarantee impartiality. They regretted the fact that the employers’ organizations had not been involved in the discussions that had preceded this constitutional initiative. They trusted that the Government would take immediate steps to guarantee the participation of the most representative employers’ organizations in this important constitutional initiative. Finally, they encouraged the Government to identify, in consultation with the most representative social partners, additional legislative reforms to the 2012 amendment of the Federal Labour Act which would be necessary to comply with the Convention, emphasizing that these should include reforms to prevent the registration of trade unions that could not demonstrate the support of the majority of the workers that they claimed to represent by means of a democratic election process.

Conclusions

The Committee took note of the information provided by the Government representative and the discussion that followed on issues raised by the Committee of Experts.

The Committee noted with interest the proposed reforms to the Constitution and labour law.

Taking into account the discussion of the case, the Committee 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 in the country;
• - engage in social dialogue with a view to enacting the President’s proposed reforms to the Constitution and federal labour law as soon as possible and reinforce social dialogue with all workers’ and employers’ organizations including through any additional complementary legislation;
• - ensure that trade unions are able to exercise their right to freedom of association in practice;
• - submit a report to the Committee of Experts on the application of Convention No. 87 both in law and practice.

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A Government representative said that freedom of association was at the core of the ILO’s values and was the essence of collective bargaining, leading to fair and equitable labour relations. He reiterated his Government’s absolute commitment to freedom of association. He added that the legislative reform process included representative workers’ organizations without restriction and that it was important for workers and employers to participate in the country’s economic and social growth. With respect to the requests of the Committee of Experts, he indicated, inter alia, that: (a) with regard to the murder of two campesino (farmer) leaders, a causal link between the events and the exercise of freedom of association could not be drawn because the victims had been coffee producers, not workers, they had not been engaging in trade union activity, and the claims did not relate to an employment relationship. While the gravity of the events should not be underestimated, there had been no violation of the Convention; (b) with regard to the transparency of trade union registration, the legislative reforms provided for the registers to be published electronically. Although the Committee of Experts indicated that there had been no publications, registers had already been published in two cases and other districts were well on the way to doing so, in all cases within the legal time limits; (c) with respect to the legal provisions that were allegedly in violation of the Convention, international treaties took precedence in the legal hierarchy over domestic legislation, and the principle of the most favourable treatment applied to workers, with the provisions of treaties being directly applicable; (d) with regard to the question of whether provisions prejudicial to freedom of association were being applied, as indicated by the Committee of Experts (such as, for example, that workers who resigned from a union would lose their jobs, or that multiple unions could not exist within the same state service, or the prohibition on public service trade unions affiliating with campesino organizations), those provisions had not been applied for more than 50 years and had been superseded by jurisprudence; and (e) with respect to the ban on foreigners serving on trade union executive committees, the administrative and regional authorities did not ask for proof of nationality from representatives. In conclusion, he said that the Government of Mexico was in compliance with the Convention and would continue to show the political will to do so.

The Worker members thanked the Government of Mexico for the information provided which would be analysed, particularly the cases of assassination. In Mexico, protection contracts presented the most serious obstacles to the exercise of freedom of association. A protection contract was a false collective agreement signed between an employer and a union, often established by the employer, and even subject to criminal elements, without the participation of the workers, and even without their knowledge. Its objective was to prevent any independent trade union representation and most afforded employers full discretion with respect to wages, working hours and employment conditions. Once the protection contract had been registered and was in force, it was extremely difficult to form another trade union within the enterprise to negotiate a new legitimate collective accord. When workers attempted to organize freely through a vote (recuento), the employer and the trade union that were signatories to the protection contract often acted in unison to intimidate the workers through verbal threats, sometimes physical violence and summary dismissals. Furthermore, the electoral processes were often manipulated to ensure the defeat of the democratic trade union. This corrupt system, unfortunately, did not appear to be restricted by the Secretariat of Labour and Social Welfare. At the local level, the protection contracts were registered with the full knowledge of the local conciliation and arbitration boards, on which the unions who were signatories to the protection contracts were represented. The Mexican system of conciliation and arbitration boards had been widely criticized for a lack of effectiveness, political partiality and corruption. Although they were nominally tripartite, in practice, these boards were controlled by the executive authorities. While workers benefited, in theory, from direct representation, the procedures for the election of workers’ representatives were unclear. Several experts had proposed replacing the system of conciliation and arbitration boards with a system of labour tribunals, which would come under the judicial rather than the executive authorities. Experts estimated that approximately 90 per cent of all collective agreements in Mexico were protection contracts, and that the number had been rising over recent years. The persistence of these contracts was explained by corruption and the networks which plagued politics, the administration, the judiciary, the economy and trade unions. This phenomenon had been widely documented in the public reports of the North American Agreement on Labour Cooperation, in academic research and recent case studies. In its 370th Report, the Committee on Freedom of Association recommended the Government to avail itself of ILO technical assistance to carry out an evaluation of national law and practice with regard to protection contracts. They referred to an example of a protection contract concluded between the management of an automobile factory and a “yellow” trade union and the resulting obstacles for the establishment of an independent trade union. On 1 December 2012, the Government of Mexico had enacted a significant reform of the Federal Labour Act, which did not include any provision aimed at restraining the widespread use of protection contracts, but centred on introducing more flexible labour relations. Other aspects of the Mexican system restricted freedom of association: the obligation for the trade union election results to be approved by the labour authorities (a procedure known as toma de nota, which had been used to remove leaders from union duties for political reasons); the limitation of trade union representation rights to workers in specific industries (radio de acción) and the fact that trade unions could not change their status to represent workers in other industries; the very small amount of the penalties provided for by law for violations of labour law and trade union rights, since workers often received less than a third of the amount legally due to them further to legal proceedings relating to dismissal based on discrimination (as the reform of the 2012 Labour Act, had limited salary arrears to 12 months in the case of illegal dismissal, even though the procedural deadlines were often much longer which, in addition to the malfunctioning of the conciliation and arbitration boards, had a dissuasive effect on workers); the fact that conciliation and arbitration boards systematically declared strikes illegal, often on technical grounds (even though the courts had revoked such decisions by the boards, it nevertheless entailed costs and considerable delays for workers), the right to strike was also severely restricted by the possibility for the employer to declare the collective agreements null and void on grounds of force majeure.

In conclusion, they denounced the use of physical violence against workers defending their rights, which was a widespread practice in Mexico. Four members of the National Union of Mine and Metal Workers had been murdered since 2006. Nobody seemed to have been charged. Santiago Rafael Cruz, an organizer with the agricultural workers’ organizing committee, had been murdered on 9 April 2007 in Monterrey. The three suspects were still at large. The collective actions of the Los Mineros union had been targeted with systematic attacks by police and armed groups. Violence had also been used against the independent union of electricity and telephone workers and the Authentic Labour Front. Furthermore, non-governmental human rights organizations, which also defended the rights of workers, had been subjected to threats, surveillance and intimidation. They emphasized that attacks on freedom of association in Mexico, a G20 country, were unacceptable, as had been stated repeatedly in international forums. It was time for Mexico to tackle its problems seriously, starting with protection contracts, so as to nurture a dynamic and independent trade union movement in the country that would improve labour relations. Noting that Mexico was currently considering ratifying the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Worker members encouraged it to do so, as it would be a significant step but which would require real political will to give full effect to the provisions of Conventions Nos 87 and 98.

The Employer members referred to the issues raised by the Committee of Experts. With regard to the murders of two campesino leaders, they noted the Government’s statement to the effect that they were not related to freedom of association matters, since the victims had not been workers but coffee producers, they had not been acting as part of a trade union and their claims had not concerned a labour issue. It was not clear where the information had originated. With regard to the registration of trade unions, they welcomed the measures taken by the Government with respect to computerization and adapting technologies to meet the targets it had set as part of reforming the Federal Labour Act. They also referred to paragraph 561 of the Report of the Committee on Freedom of Association in Case No. 2694, in which the Committee had noted with interest the reform of the Federal Labour Act that had come into force on 30 November 2012, eliminating the exclusion by separation clause in collective contracts (which authorized dismissals in cases of resignation of union membership), required the Federal Conciliation and Arbitration Board to make the contents of collective agreements public and eliminated the local conciliation and arbitration boards, making the Federal Conciliation and Arbitration Board alone responsible for the resolution of labour disputes. The Committee on Freedom of Association had also noted that the Government’s reply indicated that the legislative reform also provided for greater transparency and democracy in trade unions, the professionalization of the legal staff of the boards, the adoption of rules to prevent irregular or corrupt practices in their proceedings, measures to expedite and streamline procedures and more serious fines for deliberate delays. The progress made by the Government of Mexico should not therefore be ignored. Moreover, in paragraphs 562 and 563 of the same report, note was taken of the information provided by the Government on the legal provisions and the national jurisprudence regarding the minimum number of workers required to establish 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 refuse membership. The Committee on Freedom of Association had observed that the provisions described by the Government did not appear to violate the principles of freedom of association and collective bargaining. It had also taken note of the information provided by the Government regarding its social dialogue and tripartite dialogue policy. They concluded by emphasizing the importance of tripartite dialogue in solving problems. With regard to the right of trade unions to organizing their activities and formulate their programmes, the Committee of Experts had requested the Government to amend the legislation that recognized the right to strike of state employees only if there was a general and systematic violation of their rights. They reiterated that the right to strike was not recognized as deriving from the Convention and that only national legislation should be taken into account.

The Worker member of Mexico referred to the request of the Committee of Experts in the context of Case No. 2694 of the Committee on Freedom of Association to apply effectively at the local level the legislation on the publication of the registration of trade unions. In its reports on compliance with the Convention, the Government had indicated that the Federal Labour Act had been amended by a Decree that had taken effect on 1 December 2012. It had, inter alia, reformed, supplemented and repealed various provisions of section 365bis, which provided for compulsory publication of trade union registrations and rules by the Secretariat of Labour and Social Welfare at the federal level and by local tripartite conciliation and arbitration boards in the states and the Federal District. However, two and a half years later, section 365bis was only being fully complied with at the federal level by the Secretariat of Labour and Social Welfare and partially by the local board of the Federal District, which meant that the 31 state boards were not giving effect to it. The widespread lack of transparency in registrations had consequences for the whole working class because it seriously hampered the exercise of freedom of association and was an obstacle to genuine collective bargaining. The harmful effects of the lack of transparency in registrations had also led to the registration and proliferation of illegitimate trade unions that had signed false collective agreements concluded without consulting the workers (commonly referred to as “employer-protector agreements”), which hindered the legitimate exercise by workers of the right to strike to obtain genuine collective agreements, since the labour legislation provided that if a collective agreement had been concluded and registered, strikes were not permitted in support of a demand to conclude a different collective agreement.

The Employer member of Mexico noted the progress made by the Government of Mexico. The murders of two campesino leaders, while deplorable, had no relation to labour matters. While the legal provisions on trade union pluralism had not yet been amended, they had been declared unconstitutional, meaning it was now possible for more than one trade union organization to exist in the same state entity. The labour reform had resolved many pending issues. The Committee of Experts had referred to laws and regulations that did not exist and had made erroneous references. Regarding the observation made by the Committee of Experts that the forced mobilization of workers who were on strike was only justified if it was to ensure essential services in the strict sense of the term, he emphasized that this situation had not arisen. Regarding the right to strike, the information referred to by the Committee of Experts was incorrect, and in any case the draft conclusions should not refer to this issue. Regarding the registration of trade unions, the Committee of Experts had welcomed the adoption of a number of provisions aimed at making trade unions more transparent and democratic, including the new section 365bis of the Federal Labour Act, which made it compulsory for the Department of Labour and Social Provision and the conciliation and arbitration boards to publish trade union registrations and by-laws. It needed to be borne in mind that the legislative reform had taken effect at the end of 2012, and that the Government would enforce the new legal provisions in the near future. He emphasized that it was not acceptable for the Committee of Experts to refer to Case No. 2694 of the Committee on Freedom of Association, as that could cause confusion between the two bodies, which dealt with different matters. He requested the Committee of Experts to work with the information provided by the Government. The progress made by the Government should be taken into account.

The Government member of Cuba, speaking on behalf of the Group of Latin American and Caribbean countries (GRULAC), noted the information provided by the Government concerning the murders of two campesino leaders during a public demonstration. She noted the Government’s statement that the complaint presented in September 2014 concerning those events contained no evidence that would suggest a causal link with the exercise of freedom of association. GRULAC noted with interest the Mexican Government’s will to investigate the case and trusted that it would provide the Committee of Experts with further information in due course. She also noted the progress made by various federal entities in the application of the Federal Labour Act, which required them to publish registers, trade union by-laws and collective agreements with a view to improving the transparent and democratic functioning of trade union organizations while respecting their autonomy. GRULAC acknowledged the significant efforts involved in computerizing and adapting technology to meet the Government’s own targets to reform the Federal Labour Act and encouraged the Government to continue making efforts to extend compliance with section 365bis of the Act to the rest of its federal entities. The Mexican Government had provided information concerning judicial rulings from the Supreme Court of Justice and the interpretation of the Federal Conciliation and Arbitration Tribunal which had found that legal restrictions on the freedom of association of civil servants were not applicable. She noted with interest the Government’s explanations concerning the interpretation of the Federal Conciliation and Arbitration Tribunal, which considered that, even though the legislative authorities had not amended the freedom of association legislation that applied to workers employed by the State, the 2011 Constitutional reform in the area of human rights had made it clear that international treaties, once ratified, were binding. Under Article 133 of the Constitution, acts of Congress deriving from the Constitution and all treaties that were in conformity with it, with the approval of the Senate, constituted the supreme law of the land. In that respect, compliance with the Convention was not conditional on the provisions of the Federal Civil Servants Act, as the Convention took precedence over the latter. Rulings of the Supreme Court of Justice had also recognized the hierarchical position occupied by international treaties ratified by Mexico within its domestic legal framework. Lastly, GRULAC welcomed with interest the Government’s will to continue promoting social dialogue with all of the most representative workers’ and employers’ organizations and reiterated its commitment to the strict application of the Convention and respect for freedom of association. She trusted that the Mexican Government would continue taking steps to give effect to the Convention.

The Worker member of the United States emphasized the volume of exported fruit and vegetables from Mexico to the United States, which had tripled to US$7.6 billion over the last decade. He said that trade and profit under the North American Free Trade Agreement (NAFTA) had benefited employers along the supply chain, but denied labour rights to workers. Mexico had ratified Convention No. 87 and the Rural Workers’ Organisations Convention, 1975 (No. 141), but continued to exclude that workforce from labour rights and protections. Workers, including children, lived in poor conditions and were exposed to toxic chemicals and wages were often illegally withheld. Employers rarely registered workers in social security or made the required contributions to the system. He cited an example of farmworkers in San Quintin who had organized and exercised their right to strike, negotiated improvements in the terms and conditions of their work and demanded an end to union registration that had been secretly held by non-representative organizations. As workers were negotiating with employers and the Government, organizations that held the official union registration tried to impose a wage increase well below what workers were seeking. The officially registered union had played no role whatsoever in negotiating the 4 June agreement which actually represented the interests of workers. The 4 June and 14 May agreements concluded by employers, the Government and workers were an important but tenuous victory that would have to be watched closely, supported by all the signatory parties and built upon. The exercise by workers of their rights under the Convention, including the right to join an organization of their own choosing and to collective action, such as the right to strike, had taken place outside, and despite, Mexico’s predominant labour relations system. That example illustrated that Mexico did not respect freedom of association. However, it also showed that workers could solve that problem by exercising their fundamental rights, including the right to strike, regardless of shortcomings in national law and practice. Until union registrations were made public and non-representative entities were barred from signing protection contracts, Mexico would not be in compliance with the labour rights protections in trade agreements that included Convention No. 87. The Trans-Pacific Partnership which was being negotiated between twelve countries, including the United States and Mexico, was supposed to include strong commitments to core Conventions. Without real reform of law and practice, Mexico would be in violation from the moment such a treaty entered into force.

An observer representing IndustriALL Global Union denounced the protection contracts labour relations system in Mexico. The reports on Case No. 2694 of the Committee on Freedom of Association showed that over 90 per cent of all workplaces were still controlled by the official protection unions. Despite the repeated recommendations from the Committee on Freedom of Association and the Governing Body over the past five years, and the Government’s public and written promises, there had been no progress for Mexican workers. The protection contract system and the conciliation and arbitration boards prevented workers from establishing unions. Despite the 2012 reform to the Federal Labour Act, there was still no access to information concerning collective bargaining agreements, transparency and labour inspection. Workers in the leather and shoe industry, rural areas, mines, the oil and gas industry and export processing zones who had refused to recognize official protection unions had suffered physical harm, been dismissed, had criminal charges brought against them and been subject to other threats. The Government had been promising to ratify Convention No. 98 for the past three years, and had been promising that the 2012 reform of the Federal Labour Act would be submitted to the ILO for technical revision, but it continued the persistent violations of Convention No. 87 through the protection contract system.

The Government member of the United States said that, in November 2012, the Government of Mexico had taken steps to modify key provisions of the Federal Labour Act. She welcomed the inclusion of provisions designed to strengthen freedom of association and collective bargaining. The reforms, however, had not been sufficient to ensure full conformity with international standards and Mexico lacked appropriate structures for their effective enforcement. The persistence of false trade unions, or “protection unions”, remained a major challenge and constituted a serious limitation of the right to freedom of association, particularly as collective agreements were concluded with these protection unions without the knowledge and consent of workers, often even before enterprises had opened. Section 365bis of the Federal Labour Act provided for compulsory publication of trade union registration and rules by the local conciliation and arbitration board. The National Union of Workers (UNT) had reported that this legal obligation was not currently effectively fulfilled by any of the local boards in practice in Mexico’s 31 states. This failure facilitated the persistence of protection unions. She indicated that the 2012 reforms had failed to address key deficiencies in the Federal Labour Act that allowed the continued existence of protection unions, including the absence of any provision that would require the demonstration that an employer was operational and that its workers supported the initial collective bargaining agreement at issue before that agreement could be deposited. She was also concerned by the enabling role of conciliation and arbitration boards in the establishment and perpetuation of protection unions, particularly through their authority to register collective agreements and to administer the recuento process through which a union attempted to secure collective bargaining rights for its workplace. The structure of these local boards did not provide for adequately inclusive worker representation and often perpetuated a bias against independent unions. It was time for the Government of Mexico to transfer these functions to the judicial branch or some other independent entity to ensure honest representation of workers and the full and fair administration of labour law and adjudication of disputes. She called on the Government of Mexico to undertake these critical legal and administrative reforms to adequately address the continued presence of protection unions and the failings of the boards in order to ensure workers the right to freedom of association in law and practice as soon as possible.

The Worker member of Finland indicated that national legislation should never be used as an excuse to undermine core ILO labour standards. Companies should respect the same core labour standards wherever they operated. All workers had the fundamental right to join the union of their own choosing without any interference or harassment, and had the right to negotiate collectively. She added that, unfortunately, the examples she was raising were from a Finnish multinational company operating in Mexico. It was currently an employer of 7,000 workers and she emphasized that the workers employed by the company had not learned of the existence of the protection contract until they had sought to organize an independent union at their factory. The management had denied their request and had referred to the existing protection contract. The independent union, Los Mineros, had requested the labour authorities for an election to allow workers to choose their union. The authorities had delayed the election for a year, giving the company and the protection union time to pressure workers, including with threats to close the plant. The independent union had narrowly lost the election. Immediately following the election, the company had dismissed more than 100 workers, including the entire executive committee of Los Mineros. The dismissed workers also included all the union observers in the election. Workers were had been called individually and told to sign a “voluntary” resignation letter. Officials of the Federal Labour Board had been present and had encouraged the workers to sign. Moreover, ten workers had not signed the resignation letters and had filed for reinstatement. After more than two years, the Federal Conciliation and Arbitration Board had ordered the reinstatement of four workers in a decision of 8 March 2015. The Board had ordered the payment of back pay from the date of their illegal dismissal. The other six workers were still awaiting a decision on their case. She believed that the company had not yet reinstated the four workers. Instead, it had offered to pay them off, which the workers had not accepted. She urged the Government to fulfil its obligations and ensure that all companies operating in Mexico, including Finnish companies, complied with freedom of association in conformity with the Convention.

An observer representing the Confederation of University Workers in the Americas (CONTUA), also speaking on behalf of Public Services International (PSI), expressed support for the claims made by the UNT. The underlying issue was the lack of democratic institutions and the manipulation of legal and technical instruments to undermine the standards laid down in Mexican labour legislation, to the detriment of workers and in violation of the right to freedom of association. He denounced State complicity with powerful and unscrupulous entrepreneurs and connivance with false unionists. Protection contracts were a collective bargaining farce, a widespread practice to prevent the development of autonomous unions which upheld democratic values. Such contracts were still in force, despite having been denounced at the national and international levels for so many years, and they were even still used in the public sector. He called for an end to this shameful practice. He observed that the case under discussion showed that anti-union pressure had intensified. The failure of the Government to meet its obligation to make trade union registrations and by-laws public was another means of protecting false unions and restricting and failing to protect democratic trade unions, whose registration was either refused or delayed excessively without any grounds whatsoever. He agreed with the Committee of Experts, which had indicated that there was a conflict between Mexican labour legislation and the Convention, namely the prohibition on two or more unions coexisting in the same state agency; the creation of mixed organizations (combining trade unions and other sectors of society); and the recognition of trade union federations at state level. He conceded that many of those contradictions had been resolved through the courts, with the provisions in question being declared unconstitutional after long legal proceedings. However, in addition to judicial rulings, it was vital to repeal once and for all the provisions that were in violation of the Convention. He emphasized the serious legal restrictions in Mexican legislation limiting the right to strike of state employees, which were inconsistent with international standards and with the historical stance taken by the ILO supervisory bodies, in addition to being in violation of the Convention, which clearly protected the right to strike as a human right at work. In conclusion, he noted that collective labour relations in Mexico were in need of continuous analysis by the ILO, sustained support for those who promoted and fought for democracy and the momentum of political and social change.

The Worker member of Colombia agreed with the International Trade Union Federation (ITUC) and the Trade Union Confederation of the Americas (CSA-TUCA) that there was reason to fear that the concept of employer protection collective contracts might be exported to other countries, as had happened in Colombia, whose union contracts operated as employer protection contracts. He recalled that employer protection collective contracts had been defined as contracts that employers concluded with trade unions, or rather with a person with a trade union registration, who guaranteed that the employer would be able to operate without any union opposition or any demands from the workers, in exchange for paying the “trade union” offering the service. In reality, the whole process involved a false union and a false collective agreement. Certain studies suggested that around 90 per cent of registered collective contracts in Mexico were in fact employer protection collective contracts. That was a result of three factors: the existence of a large number of enterprises and false trade unions that were willing to violate the law; the existence of legal provisions under which collective protection contracts were possible; and the inaction or complicity of State institutions. Although collective labour contracts had to be deposited with conciliation and arbitration boards, the union did not have to prove the membership of the workers in the enterprise with which they were concluded. Furthermore, almost all collective contracts contained an “exclusion clause” that prohibited employers from recruiting workers who were not members of the union (“exclusion from recruitment”) and a clause obliging them to dismiss workers who resigned or were expelled from the union (“exclusion by separation”). He considered that: it was necessary to review the power of the authorities to refuse the registration of a trade union or to recognize its representatives; that when depositing a collective agreement, the existence of the enterprise concerned and of its workers, and their representatives, should be required; and that “exclusion from recruitment” and “exclusion by separation” clauses should be prohibited. It was also essential to adopt measures to guarantee in practice the enforcement of the new legislative provisions requiring that the registration information and by-laws of unions be made public and accessible, as well as the measures on the transparency and democratic functioning of trade unions. In conclusion, he urged the Committee to reiterate appeal made by the Committee of Experts for the amendment of Mexican legislation so that the right to strike of workers in the service of the State, including workers in the banking sector, was fully recognized, as that right was inherent to Convention No. 87.

The Government representative said that there were a number of issues that warranted analysis and clarification. He reiterated the Government’s commitment to freedom of association and the free exercise of the right to organize. He expressed particular concern at the fact that the matters raised predated the labour reform, the first of the major structural reforms undertaken in the country, which had entailed significant changes in the manner in which those issues were addressed. Referring to the claims that 90 per cent of collective agreements were protection contracts, he observed that that figure originated from a survey conducted in 2004, and that, regardless of the criteria used in that analysis, it was important to indicate that there had been substantial developments and changes in enterprises in Mexico. He emphasized that virtually 99 per cent of enterprises in the country were micro, small and medium-sized enterprises. Statistical information should be treated with particular care. With regard to the toma de nota provisions on the recognition of unions, under section 693 of the Federal Labour Act it was possible for legal personality to be granted to trade unions on the basis of other documents. He said that the acknowledgement of the legal personality to a trade union did not affect its operation. He emphasized that toma de nota certificates were issued within an average of five working days, and sometimes even three. With regard to the coverage of unions, any trade union was free to include any worker as its member; the point was to prevent the creation of false unions. With regard to the references made to Cases Nos 2694 and 2478 of the Committee on Freedom of Association, he considered that the Conference Committee was not the appropriate forum to which to transfer discussions from the Committee on Freedom of Association, as confusion would ensue. The delay in the online publication of union by-laws and registrations had been presented as showing lack of transparency in union matters. He emphasized that the obligation to ensure transparency had existed from the time when the law had come into force; and that at present action was being taken to facilitate access to information. With regard to the claim that there had been no communication with the UNT to address those issues, he recalled that in July 2013 a specific collaboration agreement had been signed with the UNT establishing that one of the issues to be dealt with would precisely be respect for collective bargaining and freedom of association. He invited the UNT to give effect to agreement and to review its content, and called for the information used to be up to date. He considered it a matter of concern that respect and protection for workers’ rights were being confused with an issue that related to market competition between enterprises. He added that the “exclusion clause” had been removed from the Federal Labour Act during the reform. The reform also introduced penalties for staff of conciliation and arbitration boards who interfered unduly in or delayed proceedings; and that the penalties could include detention. He refuted the assertion concerning the availability of information, referring to what had been said previously concerning two districts (San Luis Potosí and the Federal District). He added that, in view of the complexity of the transformation needed in the conciliation and arbitration boards, the labour reform had allowed three years for a series of improvements. He reiterated that the Government of Mexico would continue working intensively and listening to all voices in seeking the best way to safeguard the right to freedom of association and legitimate representation for workers. Nevertheless, he explained that, in so doing, particular care would need to be taken to avoid simulations or actions which, without directly representing the legitimate interests of workers, sought to obtain representative positions to which they were not entitled. He referred to situations that had been remedied by judicial rulings. The Government would be receptive to requests for information made by the present Committee.

The Employer members said that they had listened carefully to the various issues raised. They noted that opinions varied on matters that probably fell outside the scope of the Convention. They recalled that it was important for the Committee to restrict itself to examining Convention No. 87, as Mexico had not ratified Convention No. 98. They added the many references had been made to matters that were directly related to Convention No. 98, which they would not address in detail. They recalled certain information presented by the Government representative regarding the need for trade union registration to be transparent, the significant reforms that had been implemented in the Federal District and San Luis de Potosí, and the setting of a deadline of three years, which they considered reasonable. They noted that the principle of the most favourable treatment was applied. Trade unions could coexist and no one had been dismissed for belonging to a trade union. And there were campesino organizations that were affiliated with other organizations. Although the Federal Labour Act still contained a prohibition on foreigners serving on executive committees, this requirement did not apply in practice for registration. They emphasized that the information available came largely from the cases of the Committee on Freedom of Association. Four meetings had recently been held with different types of organizations, two of which had been attended by the President of Mexico. At one of these, in August 2013, a meeting had been held with the CSA-TUCA, the IndustriALL Global Union and the United Steelworkers, during which many issues relating to the legislative reforms had been discussed. In April 2014, the President of Mexico had also held a meeting with the UNT, the organization that had submitted the complaint to the Committee on Freedom of Association. In addition, the Secretary for Labour and Social Welfare had held several meetings, including with the UNT, the Revolutionary Confederation of Workers and Campesino Farmers, and the Regional Confederation of Workers of Mexico. Progress was being made in many areas that were addressed. Extensive social dialogue was being undertaken, not only with Mexican workers’ organizations, but also with international organizations. They emphasized that it was important that existing conflicts were being resolved and that social dialogue, inspection mechanisms and the justice system were functioning. They also recalled that it had been reported that many legislative provisions were not only inapplicable, but also unconstitutional. They noted that ILO technical assistance could be associated with a process of legislative development. To that end, the Government itself had announced the possibility of carrying out a technical revision of Mexican legislation. They invited the Government to avail itself of ILO technical assistance, where appropriate.

The Worker members said that it was positive that the Government recognized the problems it faced regarding freedom of association, including those related to “protection contracts” that were flagrant violations of the principle of freedom of association. That type of agreement denied workers the right to be freely represented by the trade union of their choice and to bargain collectively. Workers found themselves to be members of protection unions and covered by collective agreements without even being aware of it. However, protection contracts were not negotiated by democratically elected workers’ representatives and therefore did not reflect their priorities. The situation was not showing any sign of improvement since 90 per cent of existing collective agreements were of the protection type. For many years and despite the recommendations of the ILO supervisory bodies, the Ministry of Labour had still not taken appropriate steps to remedy the situation. In December 2012, an important reform had been undertaken of the Federal Labour Act and it was regrettable that the opportunity to resolve the issue had not been taken. The conciliation and arbitration boards also caused serious problems regarding the exercise of freedom of association, as they were not independent and were subject to political influence and corruption. For these reasons, the Worker members urged the Government to comply with its legal obligations without delay by publishing the list of registered local trade unions in the 31 states, and not just in the Federal District, and by identifying, in consultation with the social partners and in accordance with the recommendations of the Committee on Freedom of Association, the legislative reforms needed to be made to the 2012 Federal Labour Act to bring it into line with the Convention. The reforms should in particular focus on the recommendations related to, inter alia, the prevention of the registration of trade unions that did not have electoral proof of the support of the majority of the workers that they claimed to represent, and the annulment of protection agreements concluded by trade unionists which had not been elected to represent the workers through a democratic process. It was also important to address the issue of potential conflicts of interest in the conciliation and arbitration boards. The Worker members invited the Government to ratify Convention No. 98. In conclusion, they recommended the ILO provide the Government with technical assistance, and wondered whether a direct contacts mission should be proposed in the present case. The worker members noted with interest that the Employer members of Mexico referred to the comments of the Committee of Experts on the modalities for the exercise of the right to strike.

Conclusions

The Committee took note of the oral statements made by the Under-Secretary for Labour and Social Provision and the discussion that followed.

The Committee took note of the fact that the issues raised by the Committee of Experts related, among other things, to: the murders of two campesino (peasant farmer) leaders; failure to publish trade union registrations and by-laws at local level (a practice connected with protection unions and protection contracts) despite a legal obligation to that effect; legal provisions declared unconstitutional that ran counter to trade union pluralism in federal state agencies, the right of civil servants to join trade unions freely and the right of civil servants’ organizations to affiliate with other organizations; and the ban on foreigners serving on trade union executive committees.

The Committee took note of the Government representative’s statements to the effect that the two campesino leaders murdered had not been dependent workers but coffee producers, had not belonged to any union, and had submitted claims that concerned the havoc wrought by a hurricane, such that the events had no relation to the Convention. With regard to the alleged failure to publish trade union registrations and by-laws at local level, it noted that as a result of the reform of the Federal Labour Act in 2012, any worker was now entitled to view these registrations and there was also a legal obligation to publish them electronically, although the reform allowed three years for this to be finalized (in fact, two local conciliation and arbitration boards, for the Federal District and San Luis de Potosí, already had electronic methods in place; the rest were in the process of digitization). The provisions of the Federal Act on State Employees mentioned by the Committee of Experts had been superseded by jurisprudence of the Supreme Court and by usage and custom, such that in many departments there were several registered trade unions, workers were not dismissed when they moved from one union to another, and public service trade unions were in fact affiliated to other organizations (there were four federations). The administrative authorities did not check whether executive committee members were foreign or not, and the 2012 reform prohibited discrimination based on national origin in the exercise of collective rights. The complaints and data referred to by the trade union sector concerning protection contracts were based on studies from 2004 and did not take account of recent jurisprudence or the 2012 reform that had prohibited exclusion clauses in collective contracts that restricted access to employment to members of trade unions; furthermore, the 2012 reform imposed sanctions – and even penal sanctions – on conciliation and arbitration boards whose interference was considered excessive. The Government representative had offered to provide updated information and hoped to receive feedback from the ILO. He recalled the dialogue that had taken place with national and international trade unions, and reiterated that his Government was open to engage in dialogue and that it was committed to freedom of association and other fundamental rights at work. He considered that the Committee should confine itself to the case at hand and, so as to avoid confusion, not become involved in issues that had been dealt with by the Committee on Freedom of Association.

The Committee noted with satisfaction the judgment of the Supreme Court of Justice declaring inapplicable the standards which had impeded trade union pluralism in the institutions of the State and banned re-election in trade unions.

Taking into account the discussion, the Committee requested the Government to:

• fulfil without delay its obligation to publish the registration and by-laws of trade unions in the local boards in the 31 states in the country, not just in the Federal District and San Luis de Potosí, in a period of three years as established in the Federal Labour Law;
• identify, in consultation with the social partners, additional legislative reforms to the 2012 Labour Law necessary to comply with Convention No. 87. This should include reforms that would prevent the registration of trade unions that cannot demonstrate the support of the majority of the workers they intend to represent, by means of a democratic election process – so-called protection unions; and
• provide a report on progress made to comply with these recommendations by the next session of the Committee of Experts.

The ILO should offer, and the Government of Mexico should accept, technical assistance to address the issues referred to in these recommendations.

The Government representative commended the work of the Committee and noted with interest its conclusions. He expressed the Government’s commitment to provide all the information requested and was convinced that would attest to the progress made in labour matters in Mexico. The results had been achieved through social dialogue and the commitment to decent labour in conformity with the ILO’s mandate.

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The Government supplied the following information:

While taking into account the observations of the Committee of Experts requesting additional information on the application of the Convention, the Government confirmed its willingness to comply with its obligations under ILO Conventions, and in particular those under this Convention. According to the Government, the full exercise of freedom of association and the right to organize provided for under this Convention contributes to the strengthening of occupational organizations while favouring appropriate industrial relations. The Government is studying in detail the observations of the Committee of Experts concerning possible divergencies of the Federal Act on State Employees from the provisions of this Convention in order to take them into account within the context of the political, economic and social modernization process that is affecting both labour institutions and occupational organizations.

In addition, a Government representative referred to the comments of the Committee of Experts indicating that the Government's last report on Convention No. 87 did not provide new information, but included only points that had been made in previous years by the Federation of Unions of Workers in the Service of the State (FSTSE).

He noted that, in the framework of the process of modernization in which his country was immersed, the competent authorities were studying in detail the observations of the Committee in relation to the discrepancies between some provisions of the Federal Act on State Employees and the requirements of the Convention in order to find solutions to the matters raised. The success of this process would depend on the Government's ability to reconcile the different interests of productivity factors and taking advantage of the international cooperation mechanisms, such as this important forum of the ILO.

He noted how welcome were the new programmes of technical cooperation of the ILO and the innovative policy of active partnership due to the multidisciplinary teams. In this context, he reported that the Government intended to carry out, with the participation of the multidisciplinary team of the ILO headquartered in Costa Rica, a tripartite seminar on labour standards. Lastly, he noted that his Government would provide information in its next report.

The Employers' members noted that in the case of Mexico, the questions posed by the Committee of Experts had been around for decades. They noted that there was a considerable difference in the legislative situation when Mexico ratified the Convention in 1950 and today. They further noted that the problems concerning compliance with the Convention were obvious and wondered why they had not been looked into decades ago. The report mentioned the prohibition of more than one union in a given state body, the prohibition for state employees to leave their union, the prohibition of re-election of trade union officials, etc. They noted that these were very clear violations in which the State was interfering with the freedom of trade unions and the Government representative made no excuses, nor was there any suggestion that this should be viewed differently. The Government representative spoke of the modernization process that Mexico was undergoing, but the Employers' members considered this a rather indefinite concept the outcome of which remained uncertain. The Employers' members hoped the Government representative would have recognized that these regulations were not and had never been in compliance with the requirements of the Convention. He continued noting that the Government must eliminate these discrepancies as quickly as possible and then inform the ILO of the legislative changes.

The Workers' members stated that the attitude of the Government, consisting in not replying to the comments of the Committee of Experts and which, moreover, was the source of the footnote, complicated the operation of the supervisory system. If the reply of the Government was closely scrutinized, it could be seen that its attitude consisted of simply stating that it was going to examine the comments only concerning possible discrepancies in the federal law on workers and the comments of the Committee of Experts. However, there were important discrepancies between the legislation and the terms of the Convention. In this regard, they emphasized that the above-mentioned law contained, firstly, texts which normally should elevate the internal status of unions such as the prohibition on re-election in unions and, secondly, the prohibition on having two unions in the same state body or the prohibition on members of civil servants' unions joining workers' or agricultural unions.

The Workers' members insisted that the Committee request the Government to promptly take all necessary measures to bring both law and practice into full compliance with the Convention. In addition, the Government must be requested to provide detailed information for examination by the Committee of Experts on the measures undertaken.

The Workers' member from Uruguay stated that, despite the changes announced in Mexico, the situation remained the same. He was concerned by the absence of a solution to the problems observed by the Committee of Experts as well as by the Mexican Government's considerable anti-union sentiment. For example, in the public transport company "Ruta 100" there was an endeavour to restructure, but this cloaked an attempt to destroy trade unions, resulting in a violation of Convention No. 87. It was necessary to investigate this situation promptly, since once a union was broken up another trade union might be formed in conformity with Mexican legislation but not with ILO Conventions. In connection with the fishing sector, the Ministry of Mexican Fisheries had experienced the same situation when it had become the Department of the Environment. He also noted that as a result of this restructuring the trade union structure would be dissolved and there would exist only one trade union affiliation for public employees. For these reasons it was necessary for the ILO to adopt a firm position. Without such a stand, nothing would change and there would be no possible solution to the matters; on the contrary, the situation would grow much worse.

The Government representative from Mexico stated that, in reality, two issues had been raised: when would the legislation be amended and what would be the results. As to the first point, he had already referred to the modernization process which his country was experiencing. As to the second point, he noted that everything depended on the willingness of the workers which should be expressed as their sovereign right, to avoid the situation where it resulted from state intervention as had been said. He stated that the Committee of Experts had been making comments on his country in relation to this Convention for years. Nevertheless, he believed that in reality the issues were basically of a technical nature and they consequently required a technical/legal response. Lastly, he reiterated that his Government would fulfil its commitment to continue to report on the progress achieved.

The Committee took note of the information provided by the Government representative and of the discussion that followed. The Committee recalled that for a number of years the Committee of Experts had expressed concern about the union monopoly imposed through the Federal Act on State Employees. It referred in particular to the prohibition of the coexistence of two or more unions in the same body, the prohibition on workers in the service of the State from leaving the union to which they belonged, the prohibition of the re-election of trade union officers and the extension of the restriction applicable to trade unions in general to the single federation of unions of workers in the service of the State.

The Committee welcomed the invitation to ILO authorities to propose a tripartite seminar on standards but felt that it would not be sufficient by itself. It also welcomed the indication from the Government that it would consider all the comments of the Committee of Experts, and expressed the firm hope that it would be in a position to note progress towards the full application of the Convention at an early date, including in terms of freedom for the state employees to form and join unions of their choosing outside the existing trade union structure if they so wished. The Committee asked the Government to report in detail to the Committee of Experts in due time.

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The Committee notes the Government’s reply to the comments of the International Trade Union Confederation (ITUC) of 2008. The Committee also notes the ITUC’s comments dated 24 August 2010 which refer to the application of the Convention, as well as the murder of two trade union leaders and the illegal imprisonment of a trade union member. The Committee recalls that the right to life is a fundamental prerequisite for the exercise of the rights concerned in Convention No. 87 and emphasizes that when disorders have occurred involving loss of human life or serious injury, the setting up of an independent judicial inquiry is a particularly appropriate method of fully ascertaining the facts, determining responsibilities, punishing those responsible, remedying the damages and preventing the repetition of such actions. Judicial inquiries of this kind should be conducted as promptly and speedily as possible, since otherwise there is a risk of de facto impunity which reinforces the climate of violence and insecurity and which is therefore highly detrimental to the exercise of trade union activities (see the General Survey of 1994 on freedom of association and collective bargaining, paragraph 29). The Committee requests the Government to provide its observations in this respect.

Article 2 of the Convention. Trade union monopoly in state agencies imposed by the Federal Act on State Employees and by an Act issuing regulations under the Constitution. The Committee recalls that for many years it has been commenting on the following provisions:

(i)    the prohibition of the coexistence of two or more unions in the same state agency (sections 68, 71, 72 and 73 of the Federal Act on State Employees);

(ii)   the ban on trade unionists leaving the union of which they have become members (an exclusion clause under which trade unionists who leave the union lose their jobs) (section 69 of the Federal Act on State Employees);

(iii)  the ban of unions of public servants joining trade union organizations of workers or rural workers (section 79 of the Federal Act on State Employees);

(iv)  the extension of the restrictions applying to trade unions in general to the Single Federation of Unions of State Employees (section 84 of the Federal Act on State Employees); and

(v)   the imposition by law of the trade union monopoly of the National Federation of Banking Unions (section 23 of the Act to regulate article 123(XIIIbis)(B) of the Constitution).

In this regard, the Committee notes the Government’s indication in its report that: (i) the right of state employees to organize freely is guaranteed by article 123(X)(B) of the Constitution, which lays down the right of workers to associate in order to defend their common interests and exercise the right to strike when the rights laid down in this provision are violated generally and systematically; (ii) the implications of the ruling of the Supreme Court of Justice in the case for the protection of constitutional rights (amparo) on appeal No. 1475/98, and of rulings Nos P/J 43/1999, CXXVII/2000, 2^a LVII/2005, and other similar rulings, determining the freedom of state employees to join freely the unions which accept them, and establishing that there may be more than one union in agencies, and that trade union leaders in the sector may be re-elected, have been applied strictly be the Federal Conciliation and Arbitration Tribunal (TFCA); (iii) in this respect, three federations of state employees are registered with the TFCA, namely the Federation of Unions of Workers in the Service of the State (FSTSE), the Democratic Federation of Public Servants Unions (FDSSP) and the Federation of Banking Unions (FSB); and (iv) on 1 July 2009, an initiative was launched with a draft decree to amend various provisions of the Federal Act on State Employees issued under article 123(B) of the Constitution with the objective of promoting the freedom of state workers to organize by eliminating the ban on establishing more than one union in each agency of the public authority and repealing article 123(B)(XIIbis). The Committee notes this initiative with interest and hopes that the decree will be adopted in the near future. The Committee requests the Government to provide information in its next report on any developments in this respect.

Article 3. Ban on re-election in trade unions (section 75 of the Federal Act on State Employees). In its previous comment, the Committee requested the Government to amend section 75 of the Federal Act on State Employees to align it with the case law of the Supreme Court of Justice and bring it into conformity with the Convention and current ILO practice. The Committee notes the Government’s indication that, even though the provision has not been amended, the Federal Conciliation and Arbitration Tribunal applies the case law referred to, with the result that in practice effect is given to the provisions of the Convention, as the case law of the Supreme Court of Justice of the Nation is binding on all jurisdictional bodies in the country. Under these conditions, taking into account the planned reform of the Federal Act on State Employees, the Committee requests the Government to examine the possibility of amending section 75 to align it with the case law of the Supreme Court of Justice with a view to bringing it into conformity with the Convention and current ILO practice.

Ban on foreign nationals being members of trade union executive bodies (section 372(II) of the Federal Labour Act). The Committee notes that the Government does not refer to this matter in its report. The Committee emphasizes that foreign workers should be allowed to take up trade union office, at least after a reasonable period of residence in the host country (see General Survey, op. cit., paragraph 118). The Committee requests the Government to take this principle into account in the context of a future amendment of the Federal Labour Act and to provide information on this matter in its next report.

Limited right to strike of public officials who do not exercise authority in the name of the State and requisitioning. The Committee recalls that for many years it has been making comments and requesting the Government to amend the legislation in relation to the following issues:

(i)    State employees – including workers in the banking sector – have the right to strike only if there is a general and systematic violation of their rights (section 94, Title four, of the Federal Act on State Employees, and section 5 of the Act to regulate article 123(XIIIbis)(B) of the Constitution). The Committee considers that state employees – including employees in the banking sector – who do not exercise authority in the name of the State should be able to exercise the right to strike irrespective of whether there is a general and systematic violation of rights.

(ii)   On the other hand, section 121 of the Credit Institutions Act provides that the “National Banking Commission shall ensure that during the strike as many offices as are indispensible shall remain open and as many workers as are strictly necessary to perform the functions shall continue to work”. In this respect, the Committee observed that the National Banking Commission is not tripartite. The Committee recalls that workers’ organizations should be able to take part, should they so wish, in determining the minimum service to be maintained in the event of a strike, along with employers and the public authorities (see General Survey, op. cit., paragraph 161).

(iii)  Section 99(II) of the Federal Act on State Employees lays down the requirement that to call a strike two-thirds of the workers in the public body concerned must be in favour. The Committee recalls in this respect that, with regard to workers who do not exercise authority in the name of the State, the ballot method, the quorum and the majority required should not be such that exercise of the right to strike becomes very difficult, or even impossible in practice (see General Survey, op. cit., paragraph 170).

(iv)  Several laws on the public service (the Act to regulate railways, the Act respecting national vehicle registration, the Act on general channels of communication and the Rules governing the Ministry of Communications and Transport) contain provisions for the requisitioning of staff where the national economy could be affected. The Committee recalls that the forced mobilization of workers on strike would be justified only for the purpose of ensuring the operation of essential services in the strict sense of the term (see the General Survey, op. cit., paragraph 163) and that provisions which do not relate to essential services in the strict sense of the term (such as the Act to regulate the railways, the Act on general channels of communication and the Rules governing the Ministry of Communications and Transport) should be amended.

The Committee notes the Government’s indication in relation to these matters that legislative action lies within the competence of the National Legislative Authority and that no initiatives have been submitted during the present period in relation to the amendments that are sought. In this regard, taking into account the planned reform of the Federal Act on State Employees, the Committee requests the Government to examine, together with the social partners, the possibility of making amendments as indicated above. The Committee recalls that in this process it is possible to have recourse to the technical assistance of the Office, if so desired.

Modernization of the overall labour legislation. The Committee notes the Government’s indication that: (i) with a view to modernizing labour legislation, since 2006 the Secretariat of Labour and Social Welfare (STPS) has been promoting the modernization of the legislation in this sector, since the current Federal Labour Act dates from 1970; (ii) in this regard, the STPS reviewed various initiatives to reform the Federal Labour Act that were submitted by different parliamentary groups to the Chambers of Congress of the Union and supplemented the background paper; (iii) the background paper served as a basis for the initiative to reform, supplement and repeal various provisions of the Federal Labour Act submitted to the Chamber of Deputies on 18 March 2010; (iv) the initiative proposes the modernization of 419 of the 1,010 sections of the current version of the Federal Labour Act, including the fundamental rights of workers, both individual and collective; and (v) the objectives of the initiative of labour reform are to: (a) promote the creation of high quality jobs in the formal economy; (b) develop a culture of productivity in industrial relations; (c) facilitate conducive conditions and offer legal certainty to investors; (d) promote decent work; (e) develop transparency with a view to strengthening democracy and trade union freedoms in full compliance with the autonomy of trade unions; (f) modernize and make more flexible the delivery of labour justice; and (g) integrate new mechanisms to promote compliance with labour legislation. The Government adds that the measures related to transparency and trade union democracy include the proposal to remove the so-called “exclusion on the ground of separation” clause.

Noting that the Office has made comments on the draft reform of the Federal Labour Act, the Committee expresses the firm hope that they will be fully taken into account. The Committee suggests that the Government should continue to have recourse to the technical assistance of the Office with a view to ensuring that the text that is adopted is in full compliance with the provisions of the Convention. The Committee requests the Government to indicate any developments in this respect in its next report.

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The Committee notes the comments of 29 August 2008 by the International Trade Union Confederation (ITUC) referring to: (1) serious acts of violence against, and the arbitrary arrests of trade unionists; (2) the difficulties in organizing and joining unions due to collective protection contracts and exclusion clauses in the electronics industry; and (3) the denial of the right to organize to workers recruited under service provision contracts and other types of precarious contract. The Committee requests the Government to provide its observations on these matters.

Article 2 of the Convention. Trade union monopoly in government agencies imposed by the Federal Act on State Employees and by an Act regulating the Constitution. The Committee points out that it has been commenting for many years on the following provisions:

(i)    the prohibition of the coexistence of two or more unions in the same state agency (sections 68, 71, 72 and 73 of the Federal Act on State Employees);

(ii)    the ban on trade unionists leaving the union of which they have become members (an exclusion clause under which trade unionists who leave the union lose their jobs) (section 69 of the Federal Act on State Employees);

(iii)   the ban on unions of public servants joining trade union organizations of workers or rural workers (section 79 of the Federal Act on State Employees);

(iv)   the extension of the restrictions applying to trade unions in general to the Single Federation of Unions of State Employees (section 84 of the Federal Act on State Employees); and

(v)   the imposition by law of the trade union monopoly of the National Federation of Banking Unions (section 23 of the Act to regulate article 123(XIIIbis)(B), of the Constitution).

The Committee notes that in its report the Government: (1) reiterates, in response to (i) above, that the right of state employees to organize freely is guaranteed by article 123(X)(B), of the Constitution which lays down the right of workers to associate in order to defend their common interests and use to the right to strike when the rights laid down in this provision are violated generally and systematically; (2) again reiterates, in response to (ii) above, that pursuant to jurisprudential ruling No. 43/1999 issued by the Supreme Court of Justice, the Federal Conciliation and Arbitration Tribunal upheld the resignations of workers from membership of various unions and the applications for membership of others; and (3) states that three legislative proposals have recently been submitted on freedom of association (the first consists of a bill to amend and supplement various provisions of the Political Constitution, the Federal Labour Act and the Federal Act on State Employees, which gives constitutional rank to the election of trade union executive committees; a second amendment, inter alia, of sections 68, 69, 71, 72, 78 and 79 of the Federal Act on State Employees; and a third reform supplementing or repealing several provisions of the Federal Labour Act and the Federal Act on State Employees and promoting trade union pluralism and abolition of the trade union exclusion clause).

At a general level, the Committee wishes to emphasize that any system of trade union unity or monopoly imposed directly or indirectly by law is at odds with the principle of full freedom for workers and employers to establish organizations laid down in Article 2 of the Convention. It points out that in drafting the Convention, the intent of the International Labour Conference was not to impose trade union pluralism of a compulsory nature but to ensure at least the possibility of establishing various organizations. There is thus a fundamental difference between trade union monopoly which is established and maintained by law and a single organization which is the result of a decision taken freely by the workers or their trade unions and not the implementation of a law adopted for the purpose. As the Committee has already pointed out, it is not necessarily incompatible with the Convention for legislation to establish a distinction between the most representative trade union organization and other trade union organizations, provided that this distinction amounts to no more than the recognition of certain rights to the most representative trade union (particularly with regard to representation for the purposes of collective bargaining or consultation by governments). But to allow such a distinction on no account implies that the existence of other trade unions which some of the workers wish to join may be prohibited. The Committee notes with interest the various parliamentary initiatives to harmonize the legislation with the Convention.

In these circumstances, the Committee requests the Government to take the necessary steps to amend sections 68, 69, 71, 72, 73, 79 and 84 of the Federal Act on State Employees and section 23 of the Act to regulate article 123(XIIIbis)(B) of the Constitution so as to bring them fully into line with the Convention and the abovementioned jurisprudential ruling. The Committee also asks the Government to provide information on the progress of the abovementioned legislative proposals in parliament and expresses the firm hope that any amendment of the legislation will take account of the comments it has been making for years.

Article 3. Ban on re-election in trade unions (section 75 of the Federal Act on State Employees). The Committee notes that the Government again states that the Federal Conciliation and Arbitration Tribunal applies ruling no. CXXVII/2000 of the Supreme Court of Justice establishing that section 75 of the Federal Act on State Employees which prohibits the re-election of trade union leaders is in breach of freedom of association laid down in article 123 of the Constitution and that the Court recognizes re-election where it is allowed by the statutes of the trade union. The Committee accordingly requests the Government to amend section 75 of the Federal Act on State Employees to align it with the case law of the Supreme Court of Justice and bring it into conformity with the Convention and current practice.

Ban on foreign nationals being members of trade union executive bodies (section 372(II) of the Federal Labour Act). The Committee recalls that in an earlier observation it noted that a set of draft reforms to the Federal Labour Act had been prepared and submitted to parliament as a Bill on 12 December 2002. The Committee notes that the Government reports that the Bill was referred on 13 December 2007 to the Review Committee for study. The Committee expresses the hope that the amendments to the Federal Labour Act, including the amendment of section 372(II) will be implemented in the very near future and requests the Government to provide information on the matter in its next report.

Limited right to strike of public officials who do not exercise authority in the name of State. The Committee recalls that for many years it has been commenting on the following issues:

(i)    State employees – including workers in the banking sector – have the right to strike only if there is general and systematic violation of their rights (section 94, title 4, of the Federal Act on State Employees, and section 5 of the Act to regulate article 123(XIIIbis)(B) of the Constitution). The Committee notes that with regard to the banking sector, the Government states that the Act to Regulate the Banking and Loans Service (to which the Committee has not so far referred) has been repealed by the Credit Institutions Act. It is the Committee’s view that State employees – including employees in the banking sector – who do not exercise authority in the name of the State should be able to exercise the right to strike where, even though there is no general and systematic violation of rights, the situation is nonetheless serious. In these circumstances, the Committee requests the Government to take steps to this end and to provide information on any amendments envisaged to the legislation.

        The Committee likewise observes that section 121 of the Credit Institutions Act, referred to in the previous paragraph, establishes that the “National Banking Commission shall ensure that … during the strike as many offices as are indispensible shall remain open and as many workers as are strictly necessary to perform the functions shall continue to work”. The Committee observes in this connection that the National Banking Commission is not tripartite. It reminds the Government that workers’ organizations should be able to take part, should they so wish, in determining the minimum service to be maintained in the event of a strike, along with employers and the public authorities (see General Survey on freedom of association and collective bargaining, 1994, paragraph 161). The Committee requests the Government to take the necessary steps to this end and to indicate any developments in this regard.

(ii)    The Committee observes that section 99(II) of the Federal Act on State Employees lays down the requirement that in order to call a strike, two-thirds of the workers in the public body concerned must be in favour. The Committee notes that the Government states once again that the right to strike of public servants is not expressly established in the Convention, that the Committee has acknowledged that there may be a general ban on strikes in exceptional circumstances and that strikes may be regulated by provisions governing procedures and arrangements for carrying out strikes, and that the Federal Act on State Employees is accordingly in line with the provisions of the Convention. As regards workers who do not exercise authority in the name of the State, the Committee considers that the ballot method, the quorum and the majority required should not be such that exercise of the right to strike becomes very difficult, or even impossible in practice (see General Survey, op. cit., paragraph 170). In these circumstances, the Committee requests the Government to take the necessary measures to amend section 99(II) accordingly and to keep it informed on this matter.

Requisitioning. In its previous observation the Committee noted that several laws on the public service (Act to Regulate Railways, Act on the National Vehicle Register, Act on General Channels of Communication, and the Rules governing the Ministry of Communications and Transport) make provision for the requisitioning of staff where the national economy could be affected. The Committee notes that according to the Government, the Act on the National Vehicle Register was repealed by the Act on the Public Register of Vehicles of 1 September 2004 and that the Rules governing the Federal Telecommunications Commission have been replaced by new rules which took effect on 5 January 2006. The Committee observes that other laws and regulations not mentioned by the Government are still in force. It reminds the Government that the forced mobilization of workers on strike would be justified only for the purpose of ensuring the operation of essential services in the strict sense of the term (see General Survey, op. cit., paragraph 163). The Committee accordingly asks the Government once again to take steps to amend the provisions that do not refer to essential services in the strict sense of the term (such as the Act to Regulate Railways, the Act on General Channels of Communication) and the Rules governing the Ministry of Communications and Transport and to provide information in its next report on all measures taken to this end.

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The Committee notes the Government’s report.

1. Trade union monopoly in state bodies imposed by the Federal Act on State Employees and the Constitution. The Committee recalls that for many years it has been commenting on the following provisions of the Federal Act on State Employees:

(i)    the prohibition of the coexistence of two or more unions in the same state body (sections 68, 71, 72 and 73);

(ii)    the prohibition of a trade unionist from leaving the union of which he or she has become a member (an exclusion clause under which the trade unionist loses his or her job by no longer being a member of the union) (section 69);

(iii)   the prohibition of re-election in trade unions (section 75);

(iv)   the prohibition of unions of public servants from joining trade union organizations of workers or rural workers (section 79);

(v)   the extension of the restrictions applicable to trade unions in general to the Single Federation of Unions of Workers in the Service of the State (section 84); and

(vi)   the imposition by law of the trade union monopoly of the National Federation of Banking Unions (section 23 of the Act issued under article 123(B)(XIIIbis) of the Constitution).

With regard to points (i), (iv), (v) and (vi), the Committee notes the Government’s indication that the right to organize in Mexico is set out in clause XVI of article 123 of the Constitution which establishes, without restriction whatsoever, the right of workers to associate, and that the spirit of the freedom to organize established in that provision is fully universal, based on the personal right of each worker to associate and the recognition of a collective right to the establishment of trade unions. The Committee nevertheless recalls that for many years it has been making comments on sections 68, 71, 72, 73, 79 and 84 of the Federal Act on State Employees and on section 23 of the Act issued under article 123(B)(XIIIbis) of the Constitution in view of the lack of compliance with the provisions of the Convention and it recalls that, in its previous observation, it noted that the Federal Conciliation and Arbitration Tribunal had granted registration to trade union organizations in departments in which there is another union and that the Supreme Court of Justice issued a jurisprudential ruling in 1999 (No. 43/1999) guaranteeing the exercise of the right to freedom of organization of workers in the service of the Mexican State as it found that the requirement of a single trade union for officials in each Government department violates the social guarantee of the freedom to organize of workers as established in article 123(B)(X) of the Constitution. The Government further indicates that the Federal Conciliation and Arbitration Tribunal applies this jurisprudential ruling in its decisions. Under these conditions, the Committee requests the Government to take the necessary measures to amend the legislative provisions concerned so as to bring them into full conformity with the Convention.

With regard to point (ii), relating to the exclusion clause, under the terms of which all workers lose their jobs if they leave the union, the Committee notes the Government’s indication that, in accordance with ruling No. 43/1999 of the Supreme Court of Justice, the Federal Conciliation and Arbitration Tribunal (TFCA) upheld the resignations of workers from membership of various trade unions and the applications for membership of others in relation to 19 unions. Under these conditions, the Committee requests the Government, in accordance with the practice followed by the TFCA, to take measures to amend section 69 of the Federal Act on State Employees.

In relation to point (iii), concerning the prohibition of re-election in trade unions, the Committee notes the Government’s repeated indication that the TFCA applies ruling No. CXVII/2000 of the Supreme Court of Justice, in accordance with which section 75 of the Federal Act on State Employees, which prohibits the re-election of union leaders, is in contravention of the principle of freedom of association set out in article 123 of the Constitution, and that the re-election of leaders in 34 unions has been noted. In this respect, the Committee requests the Government to keep it informed of any measure taken to amend section 75 of the Federal Act on State Employees, so as to bring it into conformity with the abovementioned ruling.

Finally, the Committee notes the Government’s indications concerning the Parliamentary initiatives submitted to Congress for the amendment, among others, of sections 68, 69, 71, 72, 73, 75, 79 and 84 referred to above. The Committee requests the Government to keep it informed of developments in the Parliamentary process relating to these legislative initiatives in the firm hope that all amendments of the Federal Act on State Employees will take into account the comments that it has been making for many years.

2. Prohibition upon foreign nationals from being members of trade union executive bodies (section 372(II) of the Federal Labour Act). In its previous observation, the Committee noted the establishment of the Central Decision-Making Forum for the reform of the Federal Labour Act, within which a set of draft reforms to the Federal Labour Act was formulated and submitted to the legislative authority as a legislative initiative on 12 December 2002. In this respect, the Committee notes the Government’s indication that this draft legislation was submitted to the Labour and Social Insurance Commission of the Chamber of Deputies for examination, analysis and opinion. The above Commission convened Parliamentary conferences in which coordinated work was undertaken by the two commissions of the Chamber of Deputies and the Senate. The Government indicates that the Bill contains the outcome of all the discussions and agreements reached by both employers and workers, and that the executive authorities facilitated the dialogue and promoted the agreements obtained. The Bill was converted into an overall reform with the agreement of the Plenary of Legislatures LVII and LIX and is currently undergoing bicameral examination. The Committee hopes that the Bill will amend section 372(II) referred to above and asks the Government to continue to keep it informed in its next report of developments in the Parliamentary process.

3. The limited right to strike of public officials who do not exercise authority in the name of the State. The Committee recalls that for many years it has been commenting on the following issues:

(i)    Workers, including those who are employed in public banks, are only able to exercise the right to strike in one or more agencies of the public authorities when there is a general and systematic violation of the rights set out in article 123(B) of the Constitution (which provides that workers shall have the right to associate in the defence of their common interests) (section 94(4) of the Federal Act on State Employees and section 5 of the Act on Banking and Credit issued under article 123(B)(XIIIbis) of the Constitution). The Committee notes the Government’s indication that the right to strike is not specifically recognized by the Convention, while emphasizing that it is duly acknowledged in the public service. It nevertheless notes that, in the particular case of bank employees, their functions are included among the category of essential services. In this respect, the Committee emphasizes that the prohibition of the right to strike in the public service should be limited to public servants exercising authority in the name of the State and to essential services (those the interruption of which would endanger the life, personal safety or health of the whole or part of the population), which do not include banking services. Under these conditions, the Committee once again urges the Government to take the necessary measures to amend the legislation in accordance with the provisions of the Convention. The Committee requests the Government to provide information in its next report on any measure adopted in this respect.

(ii)    The requirement of two-thirds of workers in the public body concerned to call a strike (section 99(II) of the Federal Act on State Employees). The Committee notes the Government’s indication that the suspension of the services of public servants could result in a generalized prejudice to citizens, for which reason the same rules should not be applied as to workers in general. In this respect, the Committee recalls that the ballot method, the quorum and the majority required should not be such that the exercise of the right to strike becomes very difficult, or even impossible in practice. Under these conditions, the Committee urges the Government to take the necessary measures to amend section 99(II) (for example, by requiring only a simple majority of the votes cast to call a strike). The Committee requests the Government to provide information in its next report on any measure adopted in this respect.

Requisitioning. In its last observation, the Committee also noted that various laws on the public services contain provisions relating to the requisitioning of staff in cases, among others, in which the national economy could be affected (section 66 of the Federal Telecommunications Act, section 56 of the Act regulating the railways, section 112 of the Act respecting general thoroughfares, section 25 of the Act respecting the national vehicle register, section 83 of the Civil Aviation Act, section 5 of the internal rules of the Secretariat for Communications and Transport and section 26 of the internal rules of the Federal Telecommunications Commission). The Committee notes the Government’s indication that the power of the federal Government to operate the necessary services in the event of a natural disaster, war, serious disturbance of public order or when preventing an imminent danger to national security, internal peace in the country or the national economy is only limited to cases in which such contingencies occur, with the result that when they do not happen the Government will not take action and there will therefore be no restriction on the right to strike of workers in the service of the State. The Committee recalls, as it has done in previous comments, that the reference to imminent danger to the national economy is too broad and that restrictions on the right to strike in circumstances in which the national economy may be affected could be contrary to the principles of the Convention and that the requisitioning of workers who are on strike could be abused where it is used as a means of settling labour disputes (see 1994 General Survey on freedom of association and collective bargaining, paragraph 163). The Committee therefore once again requests the Government to take measures to amend the above provisions and to provide information on this subject in its next report.

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The Committee notes the Government’s report.

The Committee recalls that for many years it has been referring to the following matters.

1. The trade union monopoly in state bodies imposed by the Federal Act on State Employees and by the Constitution. The Committee recalls that for many years it has been commenting on the following provisions of the Federal Act on State Employees:

(i)  the prohibition of the coexistence of two or more unions in the same state body (sections 68, 71, 72 and 73);

(ii)  the prohibition of a trade unionist from leaving the union of which he or she has become a member (an exclusion clause under which the trade unionist loses his or her job by no longer being a member of the union) (section 69);

(iii)  the prohibition of re-election in trade unions (section 74);

(iv)  the prohibition of unions of public servants from joining trade union organizations of workers or rural workers (section 79);

(v)  the extension of the restrictions applicable to trade unions in general to the Single Federation of Unions of Workers in the Service of the State (section 84); and

(vi)  the imposition by law of the trade union monopoly of the National Federation of Banking Unions (section 23 of the Act issued under article 123(B)(XIIIbis) of the Constitution).

With regard to points (i), (iv), (v) and (vi) above, the Committee notes the Government’s indications that: (1) the Committee’s understanding that the Political Constitution imposes a trade union monopoly is not correct; (2) the principle of the freedom to join organizations of workers in the service of the State is set forth in the Political Constitution; (3) under the terms of ruling No. 43/1999, the Federal Conciliation and Arbitration Tribunal has granted registration to trade union organizations in bodies in which another union exists; (4) in view of the above, it may be inferred that two or more trade unions may coexist in state bodies, provided that it is the will of the workers to be organized into a plurality of associations and that they also meet the requirements set out in law for membership and operation of trade unions; and (5) the legislative authority is the only authority empowered to issue regulations under article 123 of the Political Constitution, in accordance with article 73(X) of the Constitution. Taking into account the practice followed by the Federal Conciliation and Arbitration Tribunal and the above ruling, the Committee requests the Government to take measures to amend the legislative provisions commented upon so as to bring the legislation into conformity with the Convention and with current practice as described by the Government.

With regard to point (ii), which relates to the exclusion clause, the Committee notes the Government’s indication that it is not applicable in relation to workers in the service of the State who are members of trade union organizations, as this is prohibited by section 76 of the Federal Act on State Employees and the Federal Conciliation and Arbitration Tribunal (TFCA) has verified the decisions by workers to end their membership of one trade union and seek the membership of others (the Government refers to the cases of five trade union members). In this regard, the Committee notes that section 69 provides that "all workers are entitled to join the corresponding trade union, although once they have sought and obtained membership, they may no longer leave it unless they are expelled". The Committee accordingly requests the Government, taking into account the provisions of section 76, to take measures to amend section 69 as indicated above and in accordance with the practice followed by the TFCA.

With regard to point (iii) concerning the prohibition of re-election in trade unions, the Committee notes the Government’s indication that the TFCA applies ruling No. CXVII/2000 of the Supreme Court of Justice, which found that section 74 of the Federal Act on State Employees, which prohibits the re-election of trade union leaders, is in contravention of the freedom of association established in article 123 of the Constitution, and that cases of re-election in 20 trade unions have been observed. In this connection, the Committee requests the Government to amend section 74 as indicated by the case law so as to bring it into conformity with the Convention and with current practice.

The Committee once again requests the Government to provide information on any measures adopted in relation to the following matters.

2. Prohibition of foreign nationals from being members of trade union executive bodies (section 372(II) of the Federal Labour Act). The Committee notes the Government’s indications that: (1) in the context of the "new labour culture", the Central Decision-Making Forum has been established for the reform of the Federal Labour Act, within which the organizations of workers and employers succeeded in formulating a set of draft reforms of the Federal Labour Act; and (2) this draft text was converted into a Bill on 12 December 2002, which is being examined by the legislative authority. In this regard, the Committee hopes that the Bill provides for the amendment of section 372(II). The Committee requests the Government to provide information in its next report on developments related to the Bill.

3. The limited right to strike of public officials who do not exercise authority in the name of the State:

(i)  workers, including those who are employed in public banks, are only able to exercise the right to strike in one or more agencies of the public authorities when there is a general and systematic violation of the rights set out in article 123(B) of the Constitution (which provides that workers shall have the right to associate in the defence of their common interests) (section 94(4) of the Federal Act on State Employees and section 5 of the Act on banking and credit issued under article 123(b)(XIIIbis) of the Constitution). The Committee notes that the Government reiterates the comments it made in its report in 2002, and particularly that there is no Bill to amend these legislative provisions. In this regard, the Committee once again emphasizes that the prohibition of the right to strike in the public service should be limited to public servants exercising authority in the name of the State and it once again urges the Government to take the necessary measures to amend the legislation so as to bring it into conformity with the Convention. The Committee requests the Government to keep it informed in its next report of any measures adopted in this respect;

(ii)  the requirement of two-thirds of workers in the public body concerned to call a strike (section 99(II) of the Federal Act on State Employees). The Committee notes the Government’s indication that it is necessary to bear in mind that the Federal Act on State Employees provides in section 93 that strike action is the manifestation of the will of the majority of workers in an entity to withdraw their labour in accordance with the requirements set out in this Act. In this connection, observing that one of the requirements to call a strike is for it to be supported by two-thirds of the workers in the public body concerned, the Committee urges the Government to take the necessary measures to amend section 99(II) (for example, by requiring only a simple majority of the votes cast to call a strike). The Committee requests the Government to provide information in its next report on any measures adopted on this subject.

Furthermore, in its observation in 2002, the Committee observed that various laws on the public services contain provisions relating to the requisitioning of personnel in cases, among others, in which the national economy could be affected (section 66 of the Federal Telecommunications Act, section 56 of the Act regulating the railways, section 112 of the Act respecting general thoroughfares, section 25 of the Act respecting the national vehicle register, section 83 of the Civil Aviation Act, section 5 of the internal rules of the Secretariat for Communications and Transport and section 26 of the internal rules of the Federal Telecommunications Commission). The Committee notes the Government’s indications that: (1) requisitioning consists of the expropriation of goods or the forced use of moveable or immovable property, including the temporary control of persons in certain services, as determined by the competent authority, to be able to meet needs or undertake acts required forthwith to maintain calm or public order; and (2) a strike is the right vested in a coalition of workers in the service of the State to suspend work temporarily when the titular head of an entity in her or his capacity as employer does not accede to their labour demands and the rights enshrined in article 123(B) of the Constitution are violated in a general and systematic manner, and as such requisitioning is an administrative act undertaken by the authority in the event of natural disaster, war, a serious deterioration in public order or where an imminent danger is foreseen for national security, the internal peace of the country or the national economy. The Committee considers that the reference to an imminent danger for the national economy is too broad and it therefore reminds the Government that restrictions on the right to strike in circumstances in which the national economy may be affected could be contrary to the principles of the Convention and that the requisitioning of workers who are on strike could be abused where it is used as a means of settling labour disputes (see General Survey on freedom of association and collective bargaining, 1994, paragraph 163). The Committee accordingly requests the Government to take measures to amend the above provisions and to provide information on this subject with its next report.

In its previous comments, the Committee noted the observations made by the International Confederation of Free Trade Unions (ICFTU) on the application of the Convention and the Government’s reply. The Committee notes that the Government has provided further information with its report stating that: (1) the report of the ICFTU seeks to link trade policy with labour standards, whereas the objective of the Committee of Experts when examining reports is to ascertain the extent to which each State is in compliance with the provisions of Conventions and the obligations accepted in accordance with the Constitution of the ILO; (2) the ICFTU’s comments are only one of the elements in all the documentation available to the Committee to review the report on the Convention; and (3) the Committee has to take into consideration the fact that no other information exists supporting the general and groundless contentions of the ICFTU, which cannot therefore be verified. The Committee recalls that the ICFTU referred to numerous aspects described below.

Article 2 of the Convention. 1. Right of workers, without distinction whatsoever, to establish trade union organizations.

(i)  Workers in export processing zones. According to the ICFTU, although Mexican laws and regulations guarantee the same trade union rights for all workers, workers in export processing zones (maquiladoras) wishing to establish trade union organizations encounter considerable obstacles raised by employers with the connivance of the local authorities. The Committee notes the Government’s indication that: (1) in Mexico, export processing zones have no legal existence, and that it is not therefore possible to determine where the alleged obstacles arose which were encountered by workers in establishing trade unions, nor the manner in which the local authorities tolerate them; (2) national laws and regulations recognize the principle of freedom of association and all workers throughout the national territory enjoy the same labour rights and therefore have the right to establish trade union organizations. The Committee observes that in the ICFTU’s communication forwarded to the Government, maquila enterprises are mentioned by name (for example, the Han Young maquila, Kuk-Dong, Duro-Bag plant in Rio Bravo and the Alcoa plant in the state of Coahuila) in which various violations of trade union rights are alleged to have been committed. The Committee accordingly requests the Government to ensure in both law and practice that all workers in export processing zones benefit from the safeguards set out in the Convention.

(ii)  Workers under service provision contracts. The ICFTU observes that many workers are treated as service providers and are consequently not covered by labour legislation and are unable to exercise their trade union rights. The Committee notes the Government’s indication that all persons engaged in a labour relationship, irrespective of its form or denomination, are governed by the Federal Labour Act and that the provisions of this Act are a matter of public policy and that, consequently, any provision in contracts establishing that the worker renounces any of the rights or prerogatives set forth in labour standards is of no legal effect, nor would it prevent the enjoyment and exercise of such rights.

(iii)  Domestic workers. The Committee notes that, according to the ICFTU, domestic workers are not protected under the labour legislation and consequently can neither join nor establish trade union organizations. The Committee notes the Government’s reiteration of its statement that domestic workers, in addition to being covered by the rights and obligations laid down in the Federal Labour Act for workers in general, are also covered by the specific protection set out in Chapter XIII, Sixth Title, sections 331 to 343 of the Act. Noting that domestic workers are covered by the protections set out in the Federal Labour Act, the Committee requests the Government to ensure that these workers enjoy the guarantees of the Convention in practice.

2. Right of workers to establish organizations of their own choosing. Delays in registration. The ICFTU refers to obstacles and delays in the registration of new trade unions caused by the Conciliation and Arbitration Boards. The Committee notes the Government’s reference to the procedure envisaged in the Federal Labour Act and its indication that if a trade union organization considers that the authority’s decision concerning the application for the registration of a trade union is not in accordance with the above Act, it may make use of the means of recourse set out in the law. The Committee once again requests the Government to ensure that in practice the registration of trade unions is carried out without delay in order to allow them to exercise their rights in full.

Article 3 of the Convention. Right of workers’ organizations to draw up their programmes. According to the ICFTU, the Conciliation and Arbitration Boards have the authority to declare strikes "non-existent", which can entail the dismissal of workers participating in them. The ICFTU provides figures showing that these Boards make frequent use of this authority, as strikes are seldom deemed to be legal. In its previous comments, the Committee requested the Government to provide statistics on the claims submitted with a view to calling a strike and the strikes actually held, with an indication of the precise number of strikes which were declared non-existent and the reasons given by the administrative authorities. The Committee notes the Government’s indication that during the period covered by the report 11,370 claims with notice of strike action were lodged with the Federal Conciliation and Arbitration Board, of which only 66 led to strike action and two were declared non-existent, in one case because it was ruled that it did not comply with the purpose of strike action as set out in section 450(II) of the Federal Labour Act, while in the other case the strike was declared non-existent in compliance with the order of the competent authority as it did not meet the requirements set out in section 290 of the Federal Labour Act.

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At its last session the Committee noted the comments made by the International Confederation of Free Trade Unions (ICFTU) on the application of the Convention and the Government’s reply to them, and decided that it would examine them at the present session. The ICFTU brings up numerous issues, which are referred to below.

Article 2 of the Convention

1. The right of workers, without distinction whatsoever, to form trade union organizations.

(i)  Workers in export processing zones. The Committee notes that, according to the ICFTU, although Mexican laws and regulations guarantee the same trade union rights for all workers, workers in export processing zones (maquiladoras) wishing to form trade union organizations are coming up against considerable obstacles raised by employers with the connivance of the local authorities. The Committee notes with regret that the Government has not sent its comments on this matter and asks it to ensure both in law and in practice that all workers in the export processing zones enjoy the right of association as provided in the Convention.

(ii)  Workers under service provision contracts. The ICFTU observes that many workers are treated as service providers and are consequently not covered by labour legislation and are unable to exercise their trade union rights. The Committee notes that the Government merely states that the labour regime is a matter of public policy and that, consequently, any definition in contracts which is contrary to such policy, or which aims to circumvent it is void (having no effect in law). The Committee requests the Government to take steps to ensure that all workers, including those defined as service providers, are able to exercise their trade union rights both in law and in practice.

(iii)  Domestic workers. The Committee notes that, according to the ICFTU, domestic workers are not protected under the labour regime and consequently can neither join nor form trade union organizations. The Committee also notes that, according to the Government, domestic workers are covered by the rights and obligations laid down in the federal labour law for workers in general and are also covered specifically by Chapter XIII, Sixth Title, sections 331-343 of the said law. The Committee requests the Government to ensure that domestic workers enjoy, in practice, the guarantees of the Convention which are established in the legislation.

2. The right of workers to form organizations of their own choosing.

(i)  Workers in the service of the State and bank workers. The Committee notes that, according to the ICFTU, the trade union monopoly imposed by the Federal State Workers’ Act and by the Constitution remains in force, despite the fact that the Supreme Court of Justice held in 1999 that such a monopoly was in breach of the guarantee of freedom of association laid down in Article 123 (B) (X) of the Constitution. The legislation also imposes trade union monopoly in the banking sector through the National Federation of Bank Workers’ Unions. In its previous observation the Committee noted the Government’s confirmation that the legislation imposes a monopoly. The Committee again reiterates the comments it made in that connection and expresses the firm hope that the Government will take steps to repeal or amend these provisions of the law so as to bring them into line with the Supreme Court ruling and the Convention. The Committee requests the Government to provide information in its next report on all measures taken in this regard.

(ii)  Delays in registration. The Committee also notes the ICFTU’s observations concerning obstacles and delays in the registration of new trade unions caused by the Conciliation and Arbitration Boards. The Committee notes the Government’s description of the trade union registration system. It requests the Government to ensure that, in practice, the registration of trade unions is carried out without delay in order to allow trade unions to exercise their rights fully.

Article 3 of the Convention

3. The right of workers’ organizations to elect their representatives in full freedom. Prohibition of the re-election of trade union leaders in trade unions of public employees (section 74). The Committee notes with regret that the Government has not commented on these points and requests it to take the necessary measures to ensure that public employees, like other workers, are free to elect their representatives in accordance with the provisions of the Convention.

4. The right of workers to draw up their programmes. Strikes. The Committee notes that according to the ICFTU, conciliation and arbitration boards have the authority to declare strikes "non-existent", which can entail the dismissal of workers participating in them. The ICFTU gives figures showing that the boards make frequent use of this authority, strikes being seldom deemed legal. The Committee notes that, according to the Government, the boards may declare strikes to be non-existent only if they meet one or more of the conditions laid down in the legislation: where the object of the strike is not one of those listed in the legislation, where the strike was not decided on by the majority of the workers in the enterprise or when the strike procedure was not triggered by the submission of claims that comply with requirements set by law. The Committee requests the Government to provide statistics on claims submitted with a view to a strike and strikes actually held, indicating specifically those that were declared non-existent and the grounds given by the administrative authority.

The Committee requests the Government to send its comments in its next report together with all relevant information on these matters and on all the points raised by the Committee at its last session (see 2002 observation, 73rd Session).

CMNT_TITLE

The Committee notes the Government’s report and the comments made by the International Confederation of Free Trade Unions (ICFTU) on the application of the Convention. The Committee notes the Government’s reply to the comments received during its meeting, which it will examine at its next session.

1. Trade union monopoly imposed by the Federal Act on State Employees and the Constitution. The Committee recalls that for many years it has been commenting on the following provisions of the Federal Act on State Employees:

(i)  the prohibition of the coexistence of two or more unions in the same state body (sections 68, 71, 72 and 73);

(ii)  the prohibition of a trade unionist from leaving the union of which he or she has become a member (an exclusion clause under which the trade unionist loses his or her job by no longer being a member of the union) (section 69);

(iii)  the prohibition of re-election in trade unions (section 74);

(iv)  the prohibition of unions of public servants from joining trade union organizations of workers or rural workers (section 79);

(v)  the extension of the restrictions applicable to trade unions in general to the single federation of unions of workers in the service of the State (section 84); and

(vi)  the imposition by law of the trade union monopoly of the National Federation of Banking Unions (section 23 of the Act issued under article 123(B)(XIIIbis)of the Constitution).

The Committee notes the Government’s indication that the Constitution of Mexico guarantees freedom of association in articles 9 and 123(A) and (B) and that workers in the service of the State have been able to exercise their trade union rights, with an increase in the number of government agencies with more than one trade union and in the cases of the re-election of trade union leaders. The Committee nevertheless observes that the Federal Act on State Employees, issued under article 123(B) of the Constitution, establishes restrictions on freedom of association that are incompatible with the Convention, despite the Opinion of the Supreme Court of Justice (No. 43/1999 issued on 27 May 1999) guaranteeing the exercise of the right of workers in the service of the Mexican State to join trade unions in full freedom, by ruling that the requirement of a single trade union of officials for each government agency violated the social guarantee of the freedom of workers to join trade unions set out in article 123(B)(X) of the Constitution, the provisions of which continue to remain in force. The Committee once again expresses the firm hope that the Government will adopt measures to repeal or amend these provisions with a view to adapting them to the above Opinion and to the Convention. The Committee once again requests that the Government provide information in its next report on any measures adopted in this respect.

2. Prohibition of foreigners from being members of trade union executive bodies (section 372(II) of the Federal Labour Act). The Committee notes that the Government reiterates that it does not currently envisage reforming the above provision. Nevertheless, the Committee recalls that "legislation should allow foreign workers to take up trade union office, at least after a reasonable period of residence in the host country" (see 1994 General Survey on freedom on association and collective bargaining, paragraph 118). The Committee therefore considers that the public authorities should refrain from any interference which might restrict the exercise of this right as regards the conditions of eligibility of representatives. The Committee once again expresses the firm hope that the Government will take the necessary measures to amend the legislation in order to bring it into conformity with the provisions of the Convention. The Committee requests the Government to provide information in its next report on any measure envisaged in this respect.

3. The limited right to strike of public officials who do not exercise authority in the name of the State:

(i)  workers, including those who are employed in public banks, are only able to exercise the right to strike in one or more agencies of the public authorities, when there is a general and systematic violation of the rights set out in article 123(B) of the Constitution (which provides that workers shall have the right to associate in the defence of their common interests) (section 94(4) of the Federal Act on State Employees and section 5 of the Act on banking and credit issued under article 123B(XIIIbis) of the Constitution);

(ii)  the requirement of two-thirds of the workers in the public agency concerned to call a strike (section 99(II) of the Federal Act on State Employees).

The Committee notes that, although the right to strike is guaranteed, it is limited. The Committee recalls that the right to strike is one of the essential means available to workers and their organizations to promote their economic and social interests (see General Survey, op. cit., paragraph 148). The Committee emphasizes that the prohibition of the right to strike in the public service should be limited to public servants exercising authority in the name of the State and that, while in certain circumstances the right to strike may be governed by provisions laying down conditions for, or restrictions on the exercise of this fundamental right, in borderline cases respecting restrictions in the public service, one solution might be to provide for the maintenance by a defined and limited category of staff of a negotiated minimum service when a total and prolonged stoppage might result in serious consequences for the public (see General Survey, op. cit., paragraphs 151 and 158). The Committee therefore once again urges the Government to take the necessary measures to amend the legislation to bring it into conformity with the Convention. The Committee requests the Government to keep it informed in its next report of any measures adopted in this respect.

With regard to the number of workers required to call a strike in the public agency concerned, the Committee notes the Government’s information that there are no plans for an amendment in this respect. The Committee recalls once again that public servants who do not exercise authority in the name of the State should enjoy the right to strike without excessive restrictions and that, in this respect, it would be preferable to amend the legislation so that only a simple majority of votes cast is required. The Committee therefore requests the Government to take measures to harmonize its legislation with the provisions of the Convention and to keep it informed in its next report on any developments in this respect.

The Committee notes that the various laws on the public services contain provisions relating to the requisitioning of personnel in cases, among others, when the national economy could be affected (section 66 of the Federal Telecommunications Act, section 56 of the Act regulating the railways, section 112 of the Act respecting general thoroughfares, section 25 of the Act respecting the national vehicle register, section 83 of the Civil Aviation Act, section 5 of the internal rules of the Secretariat for Communications and Transport and section 26 of the internal rules of the Federal Telecommunications Commission). The Committee reminds the Government that restricting the right to strike in circumstances in which the national economy could be affected could be contrary to the provisions of the Convention and that the requisitioning of workers who are on strike could be abused where it is used as a means of settling labour disputes (see General Survey, op. cit., paragraph 163). The Committee therefore requests the Government to provide information in its next report on whether the above provisions are applied in cases in which workers exercise the right to strike.

CMNT_TITLE

The Committee notes the Government’s report on the application of the Convention in relation to the points set out below:

1.  Trade union monopoly imposed by the Federal Act on State Employees and the Constitution.  The Committee recalls that for many years it has been commenting on the following provisions of the Federal Act on State Employees and the Constitution:

(i)  the prohibition of the coexistence of two or more unions in the same state body (sections 68, 71, 72 and 73);

(ii)  the prohibition of a trade unionist from leaving the union of which he or she has become a member (section 69);

(iii)  the prohibition of re-election in trade unions (section 74);

(iv)  the prohibition of unions of public servants from joining trade union organizations of workers or rural workers (section 79);

(v)  the extension of the restrictions applicable to trade unions in general to the single Federation of Unions of Workers in the Service of the State (section 84); and

(vi)  the imposition by law of the trade union monopoly of the National Federation of Banking Unions (section 23 of the Act issued under article 123(B)(XIIIbis) of the Constitution).

The Committee once again expresses the firm hope that the Government will take measures to repeal or amend these legislative provisions with a view to bringing them into line with interpretative opinion No. 43/1999, issued by the Supreme Court of Justice of the Nation on 27 May 1999. Indeed, the Committee notes with interest that by virtue of this opinion the exercise of the right to organize of Mexican workers is guaranteed by the ruling that the imposition of a single trade union for a government department violates the right of workers to freedom of association set out in article 123(B)(X) of the Political Constitution. The Committee once again requests the Government to inform it in its next report of any measure adopted in this respect.

2.  Prohibition of foreigners from being members of trade union executive bodies (section 372(II) of the Federal Labour Act).  The Committee notes that, according to the Government, it is not currently being envisaged to reform the above legislation. Nevertheless, the Committee recalls that the autonomy of organizations can be effectively guaranteed only if their members have the right to elect their representatives in full freedom. The public authorities should therefore refrain from any interference which might restrict the exercise of this right as regards conditions of eligibility of representatives. The Committee expresses the firm hope that the Government will find the most appropriate formula for amending the above provision so that foreign workers have access to trade union office, at least after a reasonable period of residency in the host country, or where there is reciprocity between countries, for at least a specific proportion of trade union officers. The Committee requests the Government to provide information in its next report on any measure envisaged in this respect.

3.  Right to strike of employees in banking institutions belonging to the public sector.  The Committee refers once again to the restrictions on the right to strike of employees in banking institutions belonging to the public sector (section 5 of the Act issued under article 123(B)(XIIIbis) of the Constitution of 1990), and in particular the limitation on the exercise of the right to strike in the sense that employees in the public service may only call a strike in the event of the general and systematic violation of the rights set out in article 123(B) of the Constitution (section 94 of the Federal Act on State Employees). Although the Committee notes that, according to the Government, employees of banking institutions, who are covered by article 123(A) of the Constitution, can exercise the right to strike, it is nevertheless bound to observe that this is a limited right. While recalling that the right to strike is one of the essential means available to workers and their organizations to promote their economic and social interests (see General Survey on freedom of association and collective bargaining, 1994,paragraph 148), the Committee emphasizes that, although in certain circumstances strikes may be governed by provisions laying down conditions for, or restrictions on, the exercise of this fundamental right (General Survey, op. cit., paragraph 151), in borderline cases respecting restrictions on the public service, one solution might be to provide for the maintaining by a defined and limited category of staff of a negotiated minimum service when a total and prolonged stoppage might result in serious consequences for the public (General Survey, op. cit., paragraph 158). The Committee therefore once again requests the Government to take the necessary measures to amend the provisions which are in violation of the Convention, so that the legislation is explicitly adjusted to reflect national practice and the principles of freedom of association. The Committee also requests the Government to keep it informed in its next report of any measure adopted in this respect.

4.  Right to strike of state employees.  The Committee recalls that in its previous comments it also referred to the requirement of two-thirds of workers in the public body concerned to call a strike (section 99(II) of the Federal Act on State Employees). The Committee notes that, according to the Government, the repeal of the provision setting out this requirement is not currently envisaged. The Committee recalls that public servants who do not exercise authority in the name of the State should benefit from the right to strike without excessive restrictions and that, in this respect, it would be preferable to amend the legislation so that only a simple majority of votes cast is required. The Committee therefore requests the Government to keep it informed in its next report of any positive developments in this respect.

CMNT_TITLE

The Committee notes the Government's report, as well as the comments of the Mexican Confederation of Chambers of Industry (CONCAMIN) and the Confederation of Mexican Workers (CTM) on the application of the Convention.

1. Trade union monopoly imposed by the Federal Act and the Constitution on State Employees. The Committee recalls that its comments have for many years referred to the following provisions of the Federal Act on State Employees and the Constitution:

(i) the prohibition of the coexistence of two or more unions in the same state body (sections 68, 71, 72 and 73);

(ii) the prohibition of a trade unionist from leaving the union to which he or she belongs (section 69);

(iii) the prohibition of the re-election of trade union officers (section 75);

(iv) the prohibition of unions of public servants from joining trade union organizations of workers or rural workers (section 79);

(v) the extension of the restrictions applicable to trade unions in general to the single Federation of Unions of Workers in the Service of the State (section 84); and

(vi) the imposition by law of the trade union monopoly of the National Federation of Banking Unions (section 23 of the Act issued section 123(B) XIIIbis of the Constitution).

The Committee welcomes Judgment No. 43/1999 of 27 May issued by the Supreme Court of Justice of the Nation on single trade unions, which sets forth as three fundamental aspects of freedom of association: (1) the right of workers to join trade unions or establish new ones; (2) freedom not to join a particular trade union or any trade union at all; and (3) freedom to withdraw from an association. Furthermore, the decision provides that the imposition of a single trade union for a government department is contrary to the right to freedom of association provided under section 123(B) X of the Federal Constitution of the Republic.

In this context, while the decision issued of the Supreme Court goes in the direction of the requirements of the Convention, the Committee expresses the firm hope that the Government will take steps to repeal or amend the legislative provisions which have given rise to its comments for many years. The Committee requests the Government in its next report to provide information on all measures adopted in this respect.

2. Prohibition of foreigners from being members of trade union executive bodies (section 372(II) of the Federal Labour Act). The Committee again regrets to note that, although it has for many years commented on this point, the Government confined itself to transmitting the CTM observations which consider that there was no contradiction with the Convention in this regard. The Committee expresses, however, the firm hope that the Government will take measures to amend the provision cited, to enable foreign workers to take up trade union office, at least after a reasonable period of residence in the country, or where reciprocity conditions exist, at least for a certain proportion of trade union officers. The Committee requests the Government to inform it in its next report of all measures taken in this respect.

3. The right to strike of employees in banking institutions belonging to the public sector. The Committee recalls that for many years it has referred to restrictions on the right to strike of employees in banking institutions belonging to the public sector (section 5 of the Act issued under article 123(B) XIIIbis of the Constitution); and in particular to the limitation of the exercise of the right to strike, through general and systematic violations of the rights set out in article 123(B) of the Constitution (section 94 of the Federal Act on State Employees). In this connection, the Committee notes the information from the CTM that workers in State banking institutions are governed by article 123(A) of the Constitution, while commercial banking is part of the private sector and, consequently, the legislation for the public sector is not applicable to these workers. The Committee again requests the Government to take steps to repeal the provisions that are contrary to the Convention so as to bring the legislation into conformity with the practice and principles of freedom of association. The Committee requests the Government to inform it in its next report on all measures adopted in this regard.

4. Right to strike of state employees. The Committee recalls that its previous comments also referred to the requirement of two-thirds of workers in the public body concerned to call a strike (section 99(II) of the Federal Act on State Employees). The Committee regrets that the Government has submitted no comments in this connection in view of the length of time it has been recalling that this requirement is excessive for public servants who do not hold positions of state authority in the name of the State, and that a simple majority of votes cast should suffice to call a strike. It requests the Government to take measures to amend the provision cited and inform it in its next report of all positive developments in this connection.

CMNT_TITLE

The Committee notes the Government's report and regrets to note once again that it has not made any comments on the matters raised in previous direct requests, which referred to:

1. The restrictions on the right to strike of employees in banking institutions belonging to the public administration (section 5 of the Act issued under article 123(B)XIII(bis) of the Constitution); in particular, the limitation of the exercise of the right to strike in general and the systematic violation of the rights set out in article 123 of the Constitution (section 94 of the Federal Act on State Employees).

In this respect, the Committee recalls once again that important restrictions or prohibitions on the right to strike in the public sector should be confined to public servants exercising authority in the name of the State, or to employees in essential services in the strict sense of the term (those the interruption of which would endanger the life, personal safety or health of the whole or part of the population) which is not the case of bank employees.

2. The requirement of two-thirds of workers in the public body concerned to call a strike (section 99(II) of the Federal Act on State Employees).

In this respect, the Committee emphasizes that this requirement is excessive and that a simple majority should be sufficient to call a strike.

In these conditions, the Committee expresses the firm hope that the Government will take measures to amend the above provisions and that it will inform it in its next report of any progress made in this respect.

[The Government is asked to report in detail in 1999.]

CMNT_TITLE

The Committee notes the Government's report and recalls that for many years it has been referring in its comments to the following provisions:

1. Trade union monopoly imposed by the Federal Act on State Employees and the Constitution:

(i) the prohibition of the coexistence of two or more unions in the same state body (sections 68, 71, 72 and 73);

(ii) the prohibition of a trade unionist from leaving the union to which she or he belongs (section 69);

(iii) the prohibition of the re-election of trade union officers (section 75);

(iv) the prohibition of unions of public servants from joining trade union organizations of workers or rural workers (section 79);

(v) the extension of the restrictions applicable to trade unions in general to the single Federation of Unions of Workers in the Service of the State (section 84); and

(vi) the imposition by law of the trade union monopoly of the National Federation of Banking Unions (section 23 of the Act issued under article 123(B)XIII(bis) of the Constitution).

The Committee notes the information provided by the Government to the effect that, within the framework of the tripartite social dialogue that it is promoting, a formal mechanism for dialogue has been established on possible amendments to the federal labour legislation and that the Committee of Experts will be informed of its results in due course. Nevertheless, the Committee is bound to regret once again that, despite the time that has elapsed since the ratification of the Convention in 1950 and the first comments of the Committee, the Government has made no reply on the matters raised or concerning the measures taken in practice to bring its legislation into conformity with the provisions of the Convention and the principles of freedom of association.

In these circumstances, the Committee once again urges the Government to take the necessary measures as soon as possible to repeal or amend the above provisions of the Federal Act on State Employees and of the Constitution in order to bring the national legislation into conformity with the Convention and guarantee workers in the service of the State the right to establish organizations of their own choosing including, if they so wish, those outside the existing structure, in accordance with Article 2 of the Convention.

2. Right of workers to elect their representatives in full freedom. The Committee regrets to note that once again the Government has not provided its comments on section 372(II) of the Federal Labour Act, which prohibits foreigners from being members of trade union executive bodies. In these conditions, the Committee is bound to request the Government once again to take measures to allow foreign workers to take up trade union office, at least after a reasonable period of residence in the country, or where reciprocity conditions exist, at least for a certain proportion of trade union leaders (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 118).

The Committee expresses the firm hope that full account will be taken of its comments in the amendment to the labour legislation to which reference is made and it once again urges the Government to provide information in its next report on any developments with regard to all of the matters raised.

[The Government is asked to report in detail in 1999.]

CMNT_TITLE

The Committee notes the Government's report and regrets to observe that it has not made any comments on the matters raised in previous direct requests, which referred to:

(1) the restrictions on the right to strike of employees in banking institutions belonging to the public administration (section 5 of the Act issued under article 123 (B) (XIII bis) of the Constitution); in particular limitation of the exercise of the right to strike in general and systematic violation of the rights set out in article 123 (B) of the Constitution (section 94 of the Federal Act on State Employees).

In this respect, the Committee recalls that important restrictions or prohibitions on the right to strike in the public sector should be confined to public servants exercising authority in the name of the State, or to employees in essential services in the strict sense of the term (those the interruption of which would endanger the life, personal safety or health of the whole or part of the population), which is not the case of bank employees.

(2) The requirement of two-thirds of the workers in the public body concerned to call a strike (section 99 (II) of the Federal Act on State Employees).

In this respect, the Committee considers that this requirement is excessive and that a simple majority should be sufficient to call a strike.

In these conditions, the Committee requests the Government to take measures to amend the above provisions and to inform it in its next report of any measure adopted in this respect.

CMNT_TITLE

The Committee notes the Government's report and the statement made by the Government representative before the Conference Committee on the Application of Standards in June 1995, and the discussion which took place thereafter. It also notes the conclusions of the Committee on Freedom of Association in Case No. 1844 (see 300th and 302nd Reports, paragraphs 215 to 244 and paragraph 66, approved by the Governing Body at its sessions in November 1995 and March 1996).

1. Trade union monopoly imposed by the Federal Act on State Employees and the Constitution

The Committee notes that for many years its comments have referred to the following provisions of the Federal Act on State Employees and the Constitution: (i) the prohibition of the coexistence of two or more unions in the same State body (sections 68, 71, 72 and 73); (ii) the prohibition of a trade unionist from leaving the union to which she or he belongs (section 69); (iii) the prohibition of the re-election of trade union officers (section 75); (iv) the prohibition of unions of public servants from joining trade union organizations of workers or rural workers (section 79); (v) the extension of the restrictions applicable to trade unions in general to the single Federation of Unions of Workers in the Service of the State (section 84); and (vi) the imposition in the law of the trade union monopoly of the National Federation of Banking Unions (section 23 of the Act issued under article 123(B)(XIII bis) of the Constitution).

The Committee notes with interest that the Supreme Court of Justice has issued two rulings related to the legislation governing public servants in two states (Jalisco and Oaxaca), which refer to three basic workers' rights that must be respected: of becoming a member of an existing trade union or associating for the establishment of a new one; of not becoming a member or being affiliated to any trade unions; and of giving up membership of a trade union. The Supreme Court rulings emphasize that at no time did the legislators who formulated the Constitution envisage a trade union monopoly and that secondary legislation cannot therefore restrict the freedom of association by establishing that in state bodies and agencies there cannot be more than one union. Furthermore, the Committee notes that the Supreme Court approved the case-law principle establishing that the employment relationships between decentralized agencies and their employees must be governed by article 123(A) of the Political Constitution of the United States of Mexico and the Federal Labour Act.

In this respect, even though the above rulings and case law of the Supreme Court go in the same direction as the requirements of the Convention, the Committee is bound to regret that, despite the time that has elapsed since the ratification of the Convention in 1950 and the first comments made by the Committee, the Government has provided no new information concerning the practical measures adopted to bring its legislation into conformity with the provisions of the Convention and the principles of freedom of association.

In these conditions, the Committee urges the Government to take the necessary measures to repeal or amend the above provisions of the Federal Act on State Employees and the Constitution in order to bring the national legislation into conformity with the Convention and guarantee workers in the service of the State the right to establish organizations of their own choosing including, if they so wish, those outside the existing structure in accordance with Article 2 of the Convention.

2. Right of workers to elect their representatives in full freedom

The Committee regrets to note that the Government has not provided comments on the provision that was criticized in a direct request concerning the prohibition placed upon foreigners from being members of trade union executive bodies (section 372 (II) of the Federal Labour Act).

In these conditions, the Committee recalls that provisions on nationality which are too strict could deprive some workers of the right to elect their representatives in full freedom and therefore requests the Government to take measures to allow foreign workers to take up trade union office, at least after a reasonable period of residence in the country, or where reciprocity conditions exist, at least for a certain proportion of trade union leaders (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 118).

The Committee requests the Government to inform it in its next report of any developments with regard to all of the questions raised.

CMNT_TITLE

The Committee notes the comments of the National Federation of Banking Unions (FENASIB) contained in the Government's report and recalls that its previous comments referred to:

- the restrictions on the right to strike of workers in banking institutions belonging to the public administration (section 5 of the Act issued under article 123(B)(XIIIbis) of the Constitution), namely:

the limitation on the right to strike in "general and systematic violation" of the rights set out in article 123(B) of the Constitution (section 94 of the Federal Act on State Employees);

the requirement of two-thirds of the workers in the institution concerned to call a strike (section 99(II) of the Federal Act on State Employees); and

- the prohibition placed upon foreigners from having access to trade union office (section 372(II) of the Federal Labour Act).

The Committee notes that the Government's report does not contain any reply to its comments and hopes that the Government will provide information in its next report on the measures adopted to limit the restrictions on the right to strike in the public service to public servants exercising authority in the name of the State, to limit the requirement to a simple majority of the votes cast to call a strike, excluding those who have not taken part in the ballot, and to ensure that foreign workers can have access to trade union office, at least after a reasonable period of residence in the country.

CMNT_TITLE

The Committee notes the Government's report and recalls that its previous comments referred to:

-- 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);

-- the prohibition on a worker in the service of the State from leaving the union to which he belongs (section 69);

-- the prohibition of the re-election of trade union officers (section 75);

-- the prohibition on unions of public servants from joining trade union organizations of workers or rural workers (section 79);

-- the extension of the restrictions applicable to trade unions in general to the single Federation of Unions of Workers in the Service of the State (section 84); and

-- the legal limitation of trade union pluralism at the level of the federation in the banking sector (section 23 of the Act issued under article 123(B)(XIIIbis) of the Constitution).

The Committee regrets to note that the Government has failed to include any new element in its report which would enable it to change the comments that it has been making for many years and that the Government confined itself to including the reiterated points of view of the Federation of Unions of Workers in the Service of the State (FSTSE).

In these conditions, the Committee is bound to express the firm hope that the Government will take measures to bring the Federal Act on State Employees and the Act issued under article 123(B)(XIIIbis) of the Constitution into conformity with the requirements of the Convention and the principles of freedom of association.

The Committee requests the Government to keep it informed in its next report of any development in this respect.

[The Government is asked to supply full particulars to the Conference at its 82nd Session.]

CMNT_TITLE

The Committee notes the information supplied by the Government in its report and the comments of the National Federation of Banking Unions (FENASIB) contained in the report. The previous direct request referred to the situation in law as regards the right to strike, particularly in banking and credit institutions belonging to the State, as well as to section 372, point II, of the Federal Labour Act concerning the prohibition placed upon foreigners from being members of trade union executive bodies.

With regard to the right to strike of employees in private banks, the Committee notes that this will be covered by the Federal Labour Act and section 121 of the Act respecting credit institutions. In this context, the Committee already noted with interest the positive development in this respect and is grateful for the information supplied by the Government concerning the collective agreements concluded by various banking institutions, which are organized in the form of limited companies, and their trade unions.

With regard to the right to strike of employees in banking institutions belonging to the public administration, the Committee notes the information provided by the Government to the effect that the explicit exception laid out in the Act adopted under section 123(B)(XIIIbis) of the Constitution (section 5), applies to Chapter III, Title Four of the Federal Act on State Employees.

The Committee notes that the Federal Act on State Employees contains provisions restricting the right to strike (Title 4, Chapter III) and once again emphasizes that restrictions or prohibitions on the right to strike in the public sector should be confined to public servants acting in their capacity as agents of the public authority, or to services whose interruption would endanger the life, personal safety or health of the whole or part of the population. In the same way, the Committee on Freedom of Association has considered, for example, that essential services in the strict sense of the term did not include, in particular, banks, education or radio and television.

With regard to the prohibition on foreigners from becoming members of the executive bodies of trade unions (section 372, point II, of the Federal Labour Act), since the Government has not provided new information, the Committee once again points out that greater flexibility should be given to the legislation in order to permit organizations to elect their officers in full freedom and to permit foreign workers to have access to trade union office after a certain period of residence in the country, at least up to a reasonable proportion.

The Committee requests the Government to supply information in its next report on the positive measures that have been adopted to ensure that full effect is given to the Convention in this respect.

CMNT_TITLE

The Committee notes the Government's report, which once again includes comments from the Federation of Unions of Workers in the Service of the State (FSTSE) and from the executive board of the National Federation of Banking Unions (FENASIB), which emphasizes its previous comments and makes additional ones.

The Committee emphasizes that for several years it has been pointing out that the following provisions of the Federal Act on State Employees are not in conformity with the Convention:

- 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);

- the prohibition of a worker in the service of the State from leaving the union to which he belongs (section 69);

- the prohibition of the re-election of trade union officers (section 75);

- the prohibition of unions of public servants from joining trade union organizations of workers or peasants (section 79);

- the extension of the restrictions applicable to trade unions in general to the single Federation of Unions of Workers in the Service of the State (section 84).

The Committee also raised objections concerning section 23 of the Act issued under section 123(B)(XIIIbis) of the Constitution, which institutionalizes in the law the trade union monopoly of the National Federation of Banking Unions.

The Committee notes the Government's statement in its report that at the present time it has no information that there is any prospect of amending the legal provisions criticized by the Committee in the near future. Nor has it come to its knowledge that the members of the various unions of office-workers, nor the Federation in which they are grouped together (the FSTSE), have criticized the legal provisions respecting public employees. The Government also reports that the Federal Act on State Employees of 1963 has been amended by various decrees, the last of which was adopted in 1991.

With regard to the prohibition on two or more unions in the same state body, the Government points out in its report that the existence of two or more unions in the same state body would probably not be beneficial in view of the natural scope and divergence of interests which could arise between organizations of public servants with similar interests and conditions of employment. The FSTSE also considers that the existence of more than one union would result in the dissipation of the trade union movement and a weakening of the capacity to dialogue and present the common interests of employees of the State.

The Committee wishes to emphasize that any system of trade union unity or monopoly imposed directly or indirectly by the law is at variance with the principle of the establishment of organizations of workers and of employers in full freedom as set out in Article 2 of the Convention. The Committee wishes to point out that, in the preparatory work for Convention No. 87, the International Labour Conference did not propose to impose trade union pluralism of a compulsory nature; it confined itself to guaranteeing the possibility to establish different organizations. There is therefore a fundamental difference between a situation in which a trade union monopoly is instituted or maintained by law and the factual situation in which the workers or their trade unions join together voluntarily in a single organization, without this being the result of legislative provisions adopted to this effect.

The Committee recalls that it is not necessarily incompatible with the Convention for a legislation to establish a distinction between the most representative trade union organization and other trade union organizations, provided that this distinction is limited to the recognition of certain rights to the most representative trade union organization (particularly with regard to representation for the purposes of collective bargaining or consultations by governments). However, this distinction should not have the effect of making it possible to prohibit the existence of other trade union organizatons which some of the workers concerned wish to join.

With regard to the prohibition placed upon the members of a trade union of workers in the service of the State (section 69), the Committee notes the Government's comments and those of the FSTSE, which reiterate their previous points of view.

In this respect, the Committee also emphasizes that the public authorities are bound to refrain from any legislative intervention which limits the right of workers to join the trade union organization which they consider to be appropriate (Articles 2 and 3 of the Convention), or the right to leave such an organization.

With reference to the prohibition of the re-election of trade union officers (section 75), the Committee note the comments made by the Government and the FSTSE, which refer to observations which they made previously. The Committee also notes the observations made by the FENASIB, which considers that there should not be restrictions preventing the official recognition of an organization, nor prohibiting the re-election of trade union officers, nor setting a limit on their periods of office. The FENASIB adds that, although such provisions may be convenient, they are not in accordance with the sense of the Convention and, therefore, may be interpreted as an intervention which restricts a right.

The Committee once again wishes to point out that, in accordance with Article 3 of the Convention, organizations of workers should be left free to determine in their by-laws or statutes the conditions respecting the election of their leaders. Any legal measure adopted by the public authority which prohibits or restricts re-election to trade union office is incompatible with the Convention.

With regard to the prohibition upon unions of public servants from joining trade union organizations or central organizations of workers or peasants (section 79), the Committee, having noted the reiterated statements by the Government and the FSTSE, wishes to point out once again that, for the Convention to be fully applied, organizations of workers in the public sector should have the right to join federations or confederations which also include private sector organizations. Any limitation in this respect which has as its source the public authority is incompatible with Article 5 of the Convention. If the organizations of workers in the service of the State found it inconvenient from a functional and legal point of view to join organizations or central organizations of workers or peasants, in the Committee's view, they are the ones who should determine any limitations in their statutes and by-laws, and not the public authority.

With regard to the existence and recognition by the Government of the single Federation of Unions of Workers in the Service of the State (section 78), which is governed by the provisions on trade unions contained in the Federal Act on State Employees (section 84), the Committee notes the comments made by the Government and the FSTSE, which reiterate their observations in previous reports, as well as the indications given by the FENASIB to the effect that, even recognizing that the legal provisions in question limit the ability of trade unions to join other federations or confederations, it is the express wish of the trade unions, granted in Congress, to recognize a single federation.

In this respect, the Committee considers that the will of the workers as regards the form in which they associate is reflected through the organizations which they establish and the by-laws which they adopt. If trade union unity at the level of federations is imposed by law, it is not possible to know the extent to which such unity is the expression of the will of the workers and their associations, or is derived from the provisions of section 78, which is contrary to Article 5 of the Convention.

With regard to section 23 of the Act issued under section 123(B)(XIIIbis) of the Constitution, which institutionalizes in the law the trade union monopoly of the National Federation of Banking Unions (FENASIB), the Committee notes the information provided by the Government to the effect that, as a result of the constitutional reforms envisaged in the Official Gazette of the Federation, dated 27 June and 18 July 1990, as from the time when they are no longer part of the system of public administration bodies, relations between multiple banking institutions and their employees will begin to be governed by section 123(A) of the Constitution and the Federal Labour Act and, as a consequence, their employees will be able to establish trade union organizations under the terms of the Federal Labour Act. With regard to the national credit societies, which will remain the property of the State, the Committee notes that, according to the information supplied by the Government, there is currently no proposal for changes in their legal status. The Committee also notes the comments of the FENASIB, in which that Federation recognizes that section 23 of the Act issued under section 123(B)(XIIIbis) of the Constitution is at variance with Article 2 of the Convention, although it does not claim that changes are necessary since the trade unions of bank employees have reiterated their free will to group together in a single organization, namely the FENASIB.

In this connection, the Committee notes with interest that employees in private banks, since they are covered by the Federal Labour Act, can establish the organizations that they wish, both in terms of first-level trade unions and at the level of federations and confederations. Nevertheless, the Committee notes that employees of public banks will continue to be governed by the Act issued under section 123(B)(XIIIbis) of the Constitution, section 23 of which gives them no possibility in law of trade union pluralism at the level of the federation.

The Committee once again expresses the hope that the Government will re-examine the legislation in the light of the principles of the Convention, and that it will supply information on any measure which has been adopted or is envisaged to harmonize the Federal Act on State Employees and the Act issued under section 123(B)(XIIIbis) of the Constitution with the requirements of the Convention.

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The Committee notes the information supplied by the Government in its report. In its previous direct request it referred to the situation in law as regards the right to strike in banking institutions and also to section 372, point II, of the Federal Labour Act, under which foreigners cannot form a part of the executive body of trade unions.

With regard to the situation in law as regards the right to strike in banking institutions, the Committee notes that by virtue of the Decree of 27 June 1990, the section of the Constitution which established that public banking and credit services were provided exclusively by the State is repealed.

According to the Government, workers in banking and credit institutions which are bodies of the Federal Public Administration will remain subject to section 123, subsection B, of the Constitution. Point XIII bis, as amended, of subsection B reads as follows: "The bodies of the Federal Public Administration which constitute a part of the national banking system shall rule their labour relations with their workers by that laid out in the present section." This does not clearly lay down whether these workers will remain subject to the Federal Act respecting employees in the public service, which governs first-level public servants in general, or whether they will continue to be governed by the Act issuing regulations under section 123, subsection B, point XIII of the Constitution. Titles three, four, seven, eight and ten of this Act supplement the Federal Act respecting employees in the public service, which issues regulations under section 123, subsection B, of the Constitution; as a consequence, in order to exercise the right to strike, these employees are subject to the provisions contained in Chapters II and IV, Title three of the Act.

Employees in banking and credit services that are not bodies of the Federal Public Administration (once the national credit services are transformed into limited companies) they will then be governed by section 123, subsection A, of the Constitution and by the Act issuing regulations thereunder, namely the Federal Labour Act. As a consequence, the right to strike of bank employees should be governed by the same provisions as any other employee, as set out in section 121 of the new Act respecting credit institutions.

The Committee notes with interest the positive development regarding the right to strike of bank employees resulting from the above constitutional reforms and requests the Government to supply information on developments in the situation, particularly in banking and credit institutions that are bodies of the Federal Public Administration.

As regards the second matter raised in the previous direct request concerning the possibility for the legislation to permit foreigners to hold trade union office, the Government states in its report that this prohibition, which is set down in section 372, point II, of the Federal Labour Act, is based on the spirit of section 33 of the Constitution, which provides that foreigners may not in any way participate in the politicial affairs of the country, since, although it is clear that trade unions are established to defend the common interests of the workers, it is natural that their activities do not exclude acts of a political nature. The Committee notes these statements by the Government. Nevertheless, it considers that greater flexibility should be given to the legislation in order to permit organisations to elect their officers in full freedom and to permit foreign workers to have access to trade union office after a certain period of residence in the country, at least in a reasonable proportion.

The Committee requests once again the Government to indicate the positive measures that have been adopted in its next report to ensure that effect is given to the Convention in this respect.

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The Committee notes the Government's report, which also contains comments by the Federation of Unions of Workers in the Service of the State (FSTSE), repeating its previous comments and makes others.

The Committee recalls that on various occasions it has pointed out that the following provisions of the Federal Act on State Employees of 1963 are not in conformity with the Convention:

- the prohibition of the co-existence of two or more unions in the same state body (sections 68, 71, 72 and 73 of the Federal Act on state employees);

- the prohibition of a worker in the service of the State from leaving the union to which he belongs (section 69);

- the prohibition of the re-election of trade union officers (section 75);

- the prohibition of unions of public servants from joining trade union organisations of workers or peasants (section 79);

- the extension of the restrictions applicable to trade unions in general to the single Federation of Unions of Workers in the Service of the State (section 84).

The Committee also raised objections concerning section 23 of the Act issued under point XIII bis, subsection B, section 123, of the Constitution, which institutionalises in the law the trade union monopoly of the National Federation of Banking Unions.

The Committee notes the Government's statement in its report that the Committee left aside in its comments the historical circumstances underlying the legal formulae enacted by the country in its sovereignty and, in particular, the Federal Act on State Employees, which has not been questioned by the national workers' organisations before constitutional or legal bodies. The Committee also notes that, according to the Government, the possibility in the short term of amending the provisions to which the Committee has objected is not being considered since no initiatives to amend the above Act have been submitted to the Congress of the Union neither by the federal executive nor by any trade union organisation concerned. The Government also states that Mexican law gives full protection to, and in no way violates freedom of association or the right to organise, and that the Committee should remain closer to the letter of the Convention, and to its spirit and intent.

Concerning the prohibition of the coexistence of two or more unions in the same state body, the Government quotes in its report the opinon of the FSTSE according to which the legislation recognises by name the representative bodies of groups or individuals that have obtained the majority of the votes cast by all the employees in a public body, that is, recognition of trade union representation is obtained by a majority decision provided that minority views are guaranteed their channels of expression and have the possibility of gaining access to recognition by name of their representative role in subsequent electoral processes. This means that the plurality of points of view coexisting in a trade union organisation are recognised.

The Committee wishes to point out that by virtue of Article 2 of the Convention "workers ... shall have the right to establish ... organisations of their own choosing ... ". In other words, it must be the workers, not the legislation, who determine the trade union structure that they desire at the departmental level or the level of the public body whether they decide in full freedom to form one, two or more trade unions within the same establishment. The Committee therefore once again concludes that sections 68, 71, 72 and 73 of the Federal Act on State Employees are not in conformity with the Convention.

Concerning the prohibition of the re-election of trade union officers (section 75), the FSTSE points out that a heritage that is vital to Mexican society is focused in this section, whereby the mobility of individuals or groups in public office is guaranteed. This results in the democratic exercise of public representation and is vital to the political stability of its trade union organisations. According to the FSTSE, the political events in various parts of the world emphasise the importance of mobility of groups which exercise responsibility in the State and in society as one of the mechanisms to correct the excesses of the public authorities, as illustrated by the case of Eastern European countries. Finally, according to the FSTSE, the Convention provides that the public authorities shall refrain from any interference which would restrict the right of workers' and employers' organisations to elect their representatives in full freedom, although in the case of section 75 of the Federal Act on State Employees it cannot be interpreted that this Act is identified with a public authority. Neither legally nor semantically can a legal provision take on the concept of a public authority.

In this connection, the Committee wishes to emphasise that, although the objective referred to by the FSTSE of "guaranteeing" the mobility of trade union officers fully responds to the objectives of the Convention, section 75 of the Federal Act "imposes" this mobility even in the event of the workers' organisations prefering to re-elect their trade union leaders. The Committee also wishes to emphasise that, even though the Federal Act is not identified with a public authority, this Act, and specifically section 75 thereof, emanates from the public legislative authority. In these circumstances, the Committee is bound to maintain its previous conclusions according to which the prohibition of the re-election of trade union officers restricts the right of workers' organisations to elect their representatives in full freedom, as set out in Article 3 of the Convention.

Concerning the existence and recognition by the Government of a single Federation of Unions of Workers in the Service of the State, the report contains the comments of the FSTSE, which maintain that the similarity in the interests of workers in the service of the State means that it is necessary to consider procedures and forms of organisation which are effective when bargaining with the employer. This would certainly not be guaranteed if multiple organisations existed, since they would undoubtedly produce a fragmentation effect which would be contrary to the stability, strength and effectiveness of trade union organisations. The FSTSE recognises and accepts the requirement to apply procedures and forms of participation which leave room for the various political and trade union tendencies within the Federation, but through the legal system and through collaboration between those within the various trade union tendencies.

In this connection, the Committee emphasises once again that under the terms of the Federal Act on State Employees, the Federation of Unions of Workers in the Service of the State is the only central organisation recognisd by the State (section 78) and that it is governed by the provisions relating to trade unions in the above Federal Act (section 84). In these circumstances, the Committee wishes to point out that, although for the workers it is in general advantageous to avoid a multiplicity of conflicting organisations, the imposition by law of a system of trade union unity at the level of federations is incompatible with the right of workers' organisations to establish federations and confederations (Article 5). However, the Committee points out that it is not necessarily incompatible with the Convention for the legislation to establish a distinction between the most representative organisation and other organisations, provided that this distinction is confined to the recognition of certain rights for the most representative organisation (particularly as regards representation for collective bargaining purposes or for consultation by governments).

Concerning section 23 of the Act issued under section 123, subsection B, point XIIIbis, of the Constitution, which institutionalises in the law the trade union monopoly of the National Federation of Banking Unions (FENASIB), the Government refers to recent constitutional reforms under which: the fifth paragraph of section 28 of the Constitution has been repealed and banking services have been added to section 123, subsection A, of the Constitution; and subsection B, point XIII bis has been amended.

The Committee notes that, by virtue of the recent amendments to the Constitution, public banking and credit services will no longer be provided exclusively by the State. The Committee understands from the Government's statements that workers in banking and credit institutions which are being transformed into limited companies will be governed by the Federal Labour Act, although as regards banking and credit institutions that are bodies of the federal public administration, it is unclear whether their employees will be covered by the Federal Act on State Employees or whether they will continue to be covered by the Act issued under section 123, subsection B, point XIIIbis, of the Constitution. The Committee would be grateful if the Government would supply information on developments in the legislative situation and if it would specify the trade union rights of bank employees both in the public and private sectors and on the possibility under the law of trade union pluralism at the level of federations.

The Committee observes that the Government did not comment on certain legislative provisions it had criticised.

In view of the importance of the provisions of the Federal Act on State Employees, which are not in conformity with the Convention, the Committee once again hopes that the Government will re-examine its legislation in the light of the principles set out in the Convention and that it will supply information on any measure that has been adopted or is envisaged to bring the above Federal Act into conformity with the requirements of the Convention.

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The Committee notes the information supplied by the Government. In its previous direct request, it asked the Government (among other points) for precise information on the situation in law of the right to strike in banking institutions and it also referred to section 372, point II, of the Federal Labour Act, under which foreigners cannot form part of the executive body of trade unions.

With regard to the situation in law of the right to strike in banking institutions, the Government specifies that the Federal Act on state employees, which applies to public servants, governs the right to strike of bank employees. The terms of this Act impose restrictions on the right to strike which do not exist in subsection A, section 123, of the Constitution. Furthermore, the National Federation of Banking Unions observes that the legislation does not permit new terms of employment to be sought through the right to strike because, under the current terms of the Act, work can only be suspended legally when remuneration is withdrawn by the General Conditions of Service and only in this way would the legal requirement of a general and systematic violation of acquired rights be fulfilled.

In this connection, the Committee has pointed out that prohibitions or restrictions on the right to strike in the public service should be confined to public servants acting in their capacity as agents of the public authority or to services whose interruption would endanger the life, personal safety or health of the whole or part of the population. The Committee on Freedom of Association has also considered, for example, that, in particular, banks, teaching services and radio and television are not essential services in the strict sense of the term (see in this connection, the 221st Report, Case No. 1097 concerning Poland, paragraph 84).

The Committee therefore requests the Government to supply precise information on the means available to banking unions to defend their occupational interests and to state in which circumstances it would be possible for them to call a strike.

With regard to section 372, point II, of the Federal Labour Act, the Government states in its report that certain limitations and conditions are laid down by legislation concerning the legal situation of foreigners in relation to that of nationals. In the Government's opinion, Article 3 of the Convention provides that the public authorities shall refrain from any interference ... but that "refrain" should be understood to refer to the legal context, that is without prejudice to the powers and tasks with which the public authorities have been entrusted by the Congress of the Union of the United States of Mexico. Accordingly, if in these laws regulations are imposed upon foreigners so that they can undertake certain activities within the country, this is precisely because they are foreigners; but the Government considers that this does not prejudice the rights established in the Convention. In view of the above, there is no incompatibility between Article 3 of the Convention and section 372, point II, of the Federal Labour Act.

In this connection, the Committee has considered that greater flexibility should be given to the legislation in order to permit organisations to elect their leaders without interference and also to permit foreign workers to hold trade union office, at least after a reasonable period of residence in the host country. (See paragraph 160 of the 1983 General Survey of the Committee of Experts on Freedom of Association and Collective Bargaining.)

The Committee requests the Government to indicate in its next report the positive steps that have been taken to guarantee that effect is given to the Convention in this respect.

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The Committee notes the Government's report. The Committee recalls that on several occasions it has pointed out that the following provisions of the Federal Act on state employees of 1963 are not in conformity with the Convention:

- the prohibition of a worker in the service of the State from leaving the union to which he belongs (section 69);

- the prohibition of the re-election of trade union officers (section 75);

- the prohibition of unions of public servants from joining trade union organisations of workers or peasants (section 79);

- the extension of the restrictions applicable to trade unions in general to the single Federation of Unions of Workers in the Service of the State (section 84).

Concerning the prohibition of the coexistence of two or more unions in the same state body, the Government indicates that the Federation of Unions of Workers in the Service of the State (FSTSE) considers that under section 73 of the Federal Act on state employees it is possible, when a trade union organisation is already registered as a result of the will of the workers for another to exist as long as a recount is undertaken to determine which of the organisations has the largest membership and if the results show that that organisation represents a majority of the workers it shall represent their occupational interests and be registered, while the other shall be de-registered.

In the opinion of the FSTSE, to validate the permanent coexistence of various workers' representative organisations in the same body would be equivalent to justifying the "pulverisation" of trade union organisations and dividing workers in order to reduce the strength of the trade union movement to the prejudice of the common interests that it represents.

The Committee notes the information supplied by the Government and the opinion of the FSTSE, and wishes to point out that it is not necessarily incompatible with the Convention for the legislation to establish a distinction between the most representative trade union and the other trade unions, provided that this distinction is limited to the recognition of certain rights (particularly in regard to representation for the purposes of collective bargaining and consultation by governments) to the most representative trade union. The possibility of such a distinction does not imply, however, that the existence of other trade unions, which some of the workers concerned may wish to join, or the activities of these trade unions may be prohibited. The Committee emphasises that minority organisations should be allowed to function and at least have the right to make representations on behalf of their members and to represent them in the case of individual grievances (see paragraph 141 of the 1983 General Survey of the Committee of Experts). The Committee also regrets to note the provisions of section 23 of the Act issued under clause XIII bis, subsection B, section 123, of the Constitution, which gives legal effect to the trade union monopoly of the National Federation of Banking Unions.

With regard to the prohibition on workers in the service of the State from leaving the union to which they belong (section 69), the FSTSE considers that this section is not in opposition to Convention No. 87, since the Convention does not expressly provide for the right of unionised workers to leave the trade union to which they belong.

In this connection, the Committee reiterates that the public authorities must refrain from legislative interventions which limit the right of workers to join the trade union organisation that they consider to be appropriate (Article 2 of the Convention) and the right to give up their membership of that trade union.

With regard to the prohibition on the re-election of trade union officers (section 75), the FSTSE considers that this prohibition on the re-election of officers in no way infringes the right of workers to freely elect their trade union leaders, since the trade union leader who holds office is legally prevented from holding the same office in the following period, which in no way implies that the actual right of free election is restricted.

While noting these statements, the Committee wishes to point out that under the terms of Article 3 of the Convention, it must be left to the by-laws of workers' organisations to deal with elections and that, irrespective of the type of prohibition on the re-election of trade union officers (absolute prohibition, prohibition of re-election when the persons concerned have held office previously, or after a certain number of consecutive terms), any legislation which prohibits or restricts re-election to trade union office is incompatible with the Convention (in this connection, see paragraphs 165 and 166 of the General Survey).

With reference to the prohibition on unions of public servants from joining organisations or central trade unions of workers or peasants (section 79), the Government states in its report that this provision in no manner infringes the right of public servants' trade unions to belong to any central organisation such as the FSTSE. The trade unions of workers in the service of the State are organisations made up of employees of the federal public administration, who cannot be considered similar to members of workers' or peasants' trade unions in view of the public tasks for which the various departments of the Federal Government are responsible, namely, non-profit-making services, which implies that there is no similarity between trade unions of workers in the service of the State and the trade unions of workers employed in the private sector or of peasants and there would therefore be no legal or functional purpose behind the trade unions of workers in the service of the State being able to join the organisations or central trade unions of workers or peasants.

While noting the Government's repeated statements, the Committee wishes once again to point out that the provisions of Article 5 of the Convention provide that, without any exceptions, "workers' ... organisations shall have the right to establish and join federations and confederations".

With regard to the extension of the restrictions applicable to trade unions in general to the single Federation of Trade Unions for Workers in the Service of the State (section 84), the Committee notes the Government's statements in its report to the effect that the previous point raised in the observation is also related to the system under which only one central trade union organisation, such as the FSTSE, exists to which trade unions of workers in the service of the State may affiliate. Furthermore, the FSTSE recognises that with the adoption of the conditions of employment of workers in the service of public authorities in 1938, workers in the service of the State were recognised for the first time in Mexico as a category of worker. At that time it was recognised that the State, through its officials, had the nature of an employer and that, since this new category of worker was composed of all workers in the service of the Federal Government, special provision was made for them to have full rights to establish one trade union for each state body in order to unify all the workers so that they could better defend their common interests. As a consequence, irrespective of the state body in which they are employed, there are numerous terms of employment that are agreed upon at the general level for public servants. It is therefore indispensable that one single higher organisation should participate in negotiations and represent this category of worker. This system has fully guaranteed the rights of public servants, which would not be the case if various higher organisations were allowed to exist, since the uniformity of terms of employment for this category of worker would be ended, to the detriment of the workers themselves and the public administration.

The Committee wishes to reiterate its previous comments concerning this point and to emphasise that, under the terms of the Federal Act on state employees, the Federation of Unions of Workers in the Service of the State is the only central organisation recognised by the State (section 78) and that it is governed by the provisions relating to trade unions in this Federal Act (section 84). In these circumstances, the Committee wishes to point out that, although for the workers it is in general advantageous to avoid a multiplicity of competing organisations, the imposition by law of a system of trade union unity at the level of federations is incompatible with the right of workers' organisations to establish federations and confederations (Article 5 of the Convention) and it refers to its earlier comments relating to the restrictions applicable to trade unions in general (see paragraph 138 of the General Survey).

The Committee once again expresses the hope that the Government will re-examine the legislation in the light of the principles of the Convention and will supply information on any measure that has been adopted or is under consideration to bring the Federal Act on state employees into conformity with the requirements of the Convention.