Report in which the committee requests to be kept informed of development - REPORT_NO330, March 2003

1. 895. The complaint is contained in a communication from the Progressive Trade Union of Workers in the Metals, Plastics, Glass and Allied Industries of the Republic of Mexico dated May 2002.
2. 896. The Government sent its observations in communications dated 19 September and 4 November 2002.
3. 897. Mexico has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 898. In its communication dated May 2002, the Progressive Trade Union of Workers in the Metals, Plastics, Glass and Allied Industries of the Republic of Mexico states that on 24 June 2000 an extraordinary general assembly was held and a comprehensive reform of the organization’s constitution was agreed upon by majority vote of the members. The complainant organization states that the General Directorate for the Registration of Associations of the Secretariat of Labour and Social Security issued a resolution on March 2001 refusing registration of the changes and the Sub-Secretary for Labour of the Secretariat of Labour and Social Security refused an appeal for review lodged against the resolution. The text relating to these administrative decisions shows that the refusal is based on the fact that the change to the constitution aims to broaden the field of activity to take in a branch of the industry outside that contemplated in the constitution – which includes also the rubber and latex industry – and, according to the provisions of article 360 of the Federal Labour Law, industrial or national industry trade unions must comprise workers that work in enterprises in the same industrial branch. The complainant organization states that, faced with this situation, on 20 July 2001 it lodged an appeal for protection of constitutional rights (amparo) with the judicial authorities and that the Second District Court for Labour Affairs of the Federal District ruled that “The resolution of the Sub-Secretary for Labour and Social Security is incorrect in confirming the refusal to register changes to the constitution issued by the General Directorate for the Registration of Associations” and that “in these circumstances the complainant is granted amparo”. Finally, the complainant organization indicates that the Government lodged an appeal for review against the ruling handed down by the Second District Court.

B. The Government’s reply

1. 899. In communications dated 19 September and 4 November 2002, the Government states that the Progressive Trade Union of Workers in the Metals Industry requested acknowledgement of changes to articles 1, 8 and 27 in part II of its constitution from the General Directorate for the Registration of Associations of the Secretariat of Labour and Social Security. These reforms were agreed upon at an extraordinary general assembly on 24 June 2000. Specifically, the change to article 1 consists of changing the name of the trade union organization to the Progressive Trade Union of Workers in the Metals, Plastics, Glass, Rubber and Latex and Allied Industries of the Republic of Mexico and the change to article 8 broadens the field of activity of the trade union to plant workers, temporary, provisional, applicant or retired workers that provide, wish to provide, or have provided services in any enterprise, company, factory, work centre forming part of the metals, minerals, plastics, glass, rubber and latex industry.
2. 900. The Government states that the General Directorate for the Registration of Associations issued a resolution refusing acknowledgement of the changes to articles 1 and 8 of the trade union’s constitution. With regard to this, the Progressive Trade Union of Workers in the Metals Industry lodged an appeal for review against the resolution with the Sub-Secretariat of Labour of the Secretariat of Labour and Social Security. The Sub-Secretariat of Labour decided the appeal by confirming each and every one of the parts of the resolution issued by the General Directorate for the Registration of Associations. Subsequently, the Progressive Trade Union of Workers in the Metals Industry lodged a request for amparo in which it appealed the refusal to acknowledge changes to its constitution on the part of the General Directorate for the Registration of Associations and the confirmation of this administrative act by the Sub-Secretariat of Labour.
3. 901. This matter was heard in the Second District Court for Labour Affairs in the Federal District. On 4 October 2001, the Court issued a resolution in which the trade union was granted amparo and legal protection from the acts that were the subject of the appeal lodged against the General Directorate for the Registration of Associations and the Sub-Secretariat of Labour.
4. 902. The General Directorate for the Registration of Associations and the Sub-Secretariat of Labour lodged an appeal for review of the ruling of the Second District Court in Labour Affairs in the Federal District. The Government states that, on 4 October 2001, after examining the ruling mentioned above, it did not consider it either motivated or based correctly on the constitutionality of the provisions of article 360 of the Federal Labour Law, in which the different trade unions that are governed by this law are listed and their characteristics confirmed. The appeal for review was decided by the First Circuit Second Collegiate Court for Labour Affairs, which revoked the ruling handed down by the Federal District Second District Court for Labour Affairs, dismissing and denying the complainant amparo and protection of federal law.
5. 903. The Government states that, although the complainant organization indicates that the resolution of the General Directorate for the Registration of Associations refusing acknowledgement of certain articles of the constitution contravenes the provisions laid down in articles 357 and 359 of Mexican labour law and the provisions of Convention No. 87 of the ILO, it should be pointed out, with regard to the details, that article 357 of the Federal Labour Law states that workers and employers have the right to form trade unions without need for authorization. The Progressive Trade Union of Workers in the Metals Industry exercised this right as was established as a trade union and registered with the General Directorate for the Registration of Associations, under file No. 5105. Moreover, the Government points out that article 359 of Federal Labour Law and Article 3 of ILO Convention No. 87 state that workers’ and employers’ organizations have the right to draw up their constitutions and rules. The Progressive Trade Union of Workers in the Metals Industry has a legally registered constitution, which was amended during an extraordinary general assembly on 24 June 2000. The Government states that, given the above information, the Progressive Trade Union of Workers in the Metals Industry fully exercised its right as laid down in the previously mentioned articles.
6. 904. In this case, both the Progressive Trade Union of Workers in the Metals Industry and the administrative authorities lodged an appeal with a legal, impartial and independent body – the Judiciary of the Federation. By denying amparo and the protection of the federal justice to the Progressive Trade Union of Workers in the Metals Industry, the competent legal authorities gave validity to the resolutions of the General Directorate for the Registration of Associations and the Sub-Secretariat of Labour. In conclusion, the Government indicates that the labour authorities have complied with Mexican labour legislation and the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and that the parties have been able to exercise their rights in accordance with the law and have been able to lodge appeals against the resolutions that they considered affected them.

C. The Committee’s conclusions

1. 905. The Committee notes that in the present case the Progressive Trade Union of Workers in the Metals, Plastics, Glass and Allied Industries of the Republic of Mexico states that the General Directorate for the Registration of Associations of the Secretariat of Labour and Social Security issued a resolution in March 2001 refusing registration of the changes to the trade union constitution (broadening its field of activities to include the rubber and latex industry). The Committee notes that it emerges from the administrative resolutions refusing registration and the court decision confirming these, that the refusal to register the changes to the constitution was founded on the classification of trade unions laid down in article 360 of the Federal Labour Law, which states that national industrial trade unions are those formed by workers who provide their services to one or a number of enterprises in the same industrial branch.
2. 906. The Committee further notes that the Government: (1) refers to the various stages of the administrative and legal proceedings that took place with regard to this case; (2) emphasizes that the labour authorities have complied with national legislation and ILO Conventions and that the parties have been able to exercise their rights in accordance with the law; (3) states that, in accordance with the provisions of articles 357 and 359 of the Federal Labour Law, workers have the right to establish trade unions without authorization and to draw up their constitutions and rules. The Committee notes that the final court decision refused the trade union amparo and legal protection.
3. 907. The Committee recalls that the free exercise of the right to establish and join trade unions implies the free determination of the structure and composition of unions, the national legislation should only lay down formal requirements as regards trade union constitutions, and the constitutions and rules should not be subject to prior approval by the public authorities [Digest of decisions and principles of the Freedom of Association Committee, 1996, paras. 275 and 333]. Consequently, the Committee requests the Government to take steps to ensure that the changes to the constitution requested by the complainant organization are registered and to keep it informed in this regard. Nevertheless, the Committee must underline that the fact that the constitution results in an extension in the field of activity of the union does not prejudge in any way its representativeness in the sectors covered and thus its right to bargain collectively with the employers or employers’ organizations concerned.