Interim Report - REPORT_NO160, March 1977

Introduction

1. 248. The Committee already examined this case in February 1976 and submitted a report to the Governing Body in which it adopted certain interim conclusions on the basis of the information then available. This report appears in paragraphs 204-220 of its 157th Report, which was approved by the Governing Body at its 199th Session (March 1976).
2. 249. Since then, the Government submitted further comments in a communication of 10 May 1976.
3. 250. Mexico has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); it has not ratified the Right to organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

• Allegations made by the complainants
  251. 251 It should be recalled that the complaint submitted by the WCL concerned the action taken by the Spicer undertaking against its workers when they decided to withdraw from the Federation of Workers' Groups, an organisation recognised as representative for collective bargaining within the undertaking, and to join a union independent of the undertaking, the National Union of Workers in the Iron, Steel and Allied Products Industry of Mexico, affiliated to the Latin American Central of Workers.
  252. 252 According to the complainants, the registration and affiliation of the new union had been refused by the Secretariat of Labour and Social Security. The workers also initiated proceedings before the Federal Conciliation and Arbitration Board with a view to securing the recognition of their representative status for the purposes of collective bargaining.
  253. 253 According to the complainants, when the undertaking threatened to dismiss 300 workers if they did not withdraw from the independent union, they went on strike on 30 June 1975. The union leaders were then dismissed. During the strike, the undertaking is alleged to have cancelled the collective agreement in force and to have signed a new one with another union, the National Union of Metallurgical and Mineworkers of Mexico.
  254. 254 The strike ended when the undertaking agreed to; reinstate the leaders of the independent union. However, a few days after the return to work, the undertaking violated this agreement and dismissed the reinstated leaders together with 150 workers, who were subsequently followed by another 500. Some of these workers and their wives then started a hunger strike on 30 September 1975.
  255. 255 The complainants also alleged that trade union leader Moises Escamilla had been arbitrarily detained.
• The Government's reply
  256. 256 In a communication of 10 May 1976, the Government, before turning to the substance of the case, pointed out that the judicial authorities in Mexico were fully independent and that other authorities therefore could not influence or impose the decisions which they take in the exercise of their functions. The Government added that the dispute in question had been settled by the courts and that the workers had access to all the means of defence and other safeguards provided by law.
  257. 257 The Government also stated that the obligation resulting from the ratification of Convention No. 87 did not permit the ILO to revise the decisions of Mexican courts. Such action would remove the independence of the judiciary, violate the principle of the separation of powers and infringe national sovereignty.
  258. 258 Turning to the substance of the case, the Government pointed out that workers of the Spicer undertaking had belonged for some years to the Metallurgical Workers' Union of Mexico, which is affiliated to the Federation of Workers' Groups. The union was a signatory to the collective agreement established with the Spicer undertaking for the period 1974-75.
  259. 259 Another organisation, the National Union of Workers in the Iron, Steel and Allied Products Industry of Mexico sought acceptance as a signatory of the collective agreement before the Federal Conciliation and Arbitration Board on the grounds that it represented the majority of the undertaking's workers.
  260. 260 Whilst the case was still before the courts and although the collective agreement was still in force, a group of persons forced a strike in the undertaking on 30 June 1975, particularly by preventing access to the workplace by force. This de facto strike was organised without recourse to procedure through the Federal Conciliation and Arbitration Board, or any other authority. The Government pointed out in this connection that, according to Mexican legislation, use of the right to strike is subject to certain rules, particularly as regards its aims and the need to give notice to the undertaking and to send a copy of claims to the Federal Conciliation and Arbitration Board. Thus, continued the Government, whilst a strike is recognised by legislation, it is by no means permitted to exercise this right in an attempt to impose a state of anarchy which would handicap legal solutions.
  261. 261 Following these events, the Spicer undertaking asked the Federal Conciliation and Arbitration Board to declare the "non-existence" of the strike and, in accordance with law, to fix a time limit of 24 hours for the recommencement of work, with a warning to the workers that the mere fact of not respecting this decision would result in the cessation of the employment relationship. The Government added that, despite the workers' occupation of the plant, they had never been expelled by force nor threatened with such action.
  262. 262 Moreover, the case concerning the designation of the most representative union for the purposes of collective bargaining was still proceeding. During the hearing for "conciliation, applications, exceptions and presentation of evidence", the undertaking and the defendant union submitted, as an exceptional measure, that the complainant union did not possess the status necessary to refer matters to the courts. This question was examined and on 24 July 1975 the status of the complainant union was recognised, the submissions of the undertaking and the defendant union having been rejected. It was then necessary to count the workers in order to determine which union represented the majority.
  263. 263 In the meantime, the stoppage occurred. An administrative hearing to consider the evidence took place on 17 July 1975. A decision was deferred and the de facto stoppage of work continued.
  264. 264 As the situation threatened to become chaotic, the workers had started a hunger strike and the losing union would certainly avail itself of all the appeal procedures provided by law, thus prolonging the situation, the secretariat of Labour and Social Security stepped in, in accordance with the law, in an attempt to settle the dispute. Agreement was reached and approved by the Federal Conciliation and Arbitration Bureau, whilst the union asking for recognition as the most representative union for the purposes of collective bargaining withdrew its request for unknown reasons. The signing of the agreement put an end to the strike.
  265. 265 This agreement, which the Government attached to its communication, was concluded between the undertaking and a new union, the National Union of Workers in Mines, Metallurgy and Allied Sectors of Mexico, and the negotiating Committee of the striking workers. In accordance with this agreement, the undertaking gave 450 dismissed workers the option of being reinstated in their jobs or receiving appropriate compensation. The same agreement applied to 35 other workers. The workers who opted for reinstatement were to receive compensation for arrears of pay. The 127 dismissed workers who were not affected by this arrangement were fully compensated and their back-pay was calculated with effect from 18 August 1975. The undertaking also agreed to create 100 new posts in addition to those existing already and those vacated by the compensated workers. All of these posts were to be filled with temporary workers, in the order of their seniority with the undertaking. The agreement also provided that workers who were reinstated could, if they so wished, join the National Union of Workers in Mines, Metallurgy and Allied Sectors of Mexico. Those who did not wish to join it would be reinstated without belonging to a trade union.
  266. 266 The Government then referred to the allegations by the WCL to the effect that the undertaking had violated the agreement by dismissing 650 workers, some of whom had started a hunger strike on 30 September 1975. According to the Government, these dismissals never took place. The Government also pointed out that the agreement was dated 27 October 1975 and that the hunger strike consequently could not have been started for violation of that agreement, since it had not been signed at that time. In reality, following the adoption of the agreement, the undertaking had paid the compensation to the workers who did not wish to recommence work.
  267. 267 As regards the arrest of trade union leader Moises Escamilla, the Government emphatically rejected the claim that this arrest had been designed to prevent the free exercise by the person concerned of his trade union rights. A group of workers had accused this leader of fraud and misappropriation of funds. He had been arrested as would have been any other person accused of a common-law offence. Following his arrest, he was brought before the competent judge and a charge was brought against him with all the rights and safeguards provided in Mexican law. Shortly afterwards, on 10 November 1975, he was released.
  268. 268 In conclusion, the Government stated that:
       • - court decisions are not subject to review by the ILO;
       • - the case in question has come before a Mexican court and has been settled;
       • - the solution adopted is the result of an agreement approved by the parties, a third party having withdrawn;
       • - workers who so wished have been reinstated and the others have been compensated in accordance with the agreement reached;
       • - the information given in the complaint does not reflect the truth, as is shown by examination of the sequence of events;
       • - Mr. Moises Escamilla was provisionally detained for a common-law offence of which he was accused and was subsequently released;
       • - the Government has not infringed freedom of association; the Spicer undertaking may have been guilty of such infringements, but the Mexican courts are always prompt to administer justice.

B. B. The Committee's conclusions

• Conclusions of the Committee
  269. 269 Before turning to the substance of the matter, the Committee wishes to refer to the Government's statement that decisions of the national courts are not subject to review by the ILO. It is certain that the Committee is in no way competent to review the decisions of national courts. The Committee merely wishes to consider to what extent the legislation or its application is in conformity with the principles of freedom of association. As has already been pointed out, when the Committee considers -that these principles have been infringed, it has a responsibility to note the fact and bring it to the attention of the government concerned for appropriate action.
  270. 270 As regards the substance of the case, the Committee notes that it relates, on the one hand, to allegations concerning the dismissal of workers in a dispute relating to the recognition of a union by the employers and, on the other, to the arrest of trade union leader Moises Escamilla.
  271. 271 Regarding the first aspect of the case, the Committee notes that the undertaking dismissed a large number of workers following their participation in a strike which occurred as a protest over the company's attitude to the formation of an independent union. However, this strike was started not only whilst legal procedure regarding the designation of the most representative union for the purposes of collective bargaining was under way, but also without respecting the rules established in the Federal Labour code.
  272. 272 The Committee also notes that following intervention by the Secretariat of Labour and Social Security, an agreement was reached between the undertaking and a new union, the National Union of Workers in Mines, Metallurgy and Allied Sectors of Mexico and the negotiating Committee of the striking workers. The Committee also notes that under this agreement, the workers could join this new union or, if they did not wish to do so, could not become members of any trade union.
  273. 273 The Committee notes the settlement of the matter following the conciliation efforts of the Secretariat of Labour and Social Security. However, it is not clear how the undertaking was able to enter into negotiations and sign an agreement with a new union whilst a procedure for the recognition of representative status for the purposes of collective bargaining was under way between two other workers' organisations. Consequently, the Committee would request the Government to supply additional information concerning the National Union of Workers in Mines, Metallurgy and Allied Sectors of Mexico and the recognition of this organisation by the Spicer undertaking.
  274. 274 Regarding the second aspect of the case, the Committee notes that Mr. Moises Escamilla was brought before the competent judge and was released shortly afterwards following a trial. The Committee wishes to recall in this connection, as it has done on previous occasions', that the detention by the authorities of trade unionists concerning whom no grounds for conviction are subsequently found is liable to involve restrictions of trade union rights. The authorities concerned should receive appropriate instructions to eliminate the danger of detention for trade union activities.