Report in which the committee requests to be kept informed of development - REPORT_NO349, March 2008

1. 959. This complaint is contained in a communication from the Puebla State Independent Union of Education Workers (SETEP) dated 20 September 2006. This organization sent additional information in a communication dated 15 February 2007. The Government sent its observations in a communication dated 17 September 2007.
2. 960. Mexico has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), but has not ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 961. In its communications of 11 December 2006 and 15 February 2007, SETEP alleges that on 20 September 2004 it held an assembly in which it was established as an independent trade union separate from the official union (National Union of Education Workers) which initiated the procedures for registration as a trade union on 1 October 2004. SETEP adds that after eight months, it was notified that its registration had been refused. It therefore appealed to the federal court seeking protection of constitutional rights (amparo), which was granted (amparo case No. 824/2005). Subsequently, the Puebla State Arbitration Court, Mexico, continued to refuse registration. In the face of this explicit refusal by the said court, the federal court instructed it to issue a new decision. This again refused registration, indicating that the State Public Service Workers Act only recognized the existence of a sole trade union.
2. 962. Faced with this renewed refusal, SETEP again sought amparo protection from the federal court, attacking the State Public Service Workers Act as unconstitutional (Fourth District Court, amparo case No. 478/2006), but the federal courts stayed the case, arguing that the person who filed the appeal did so as Secretary General, when a new executive committee of the organization had been elected (despite the fact that the minutes of the meeting containing the decisions empowering the said person to initiate the amparo proceedings were annexed). This situation is the result of complicity between the labour authority of the Government of Puebla State and the official trade union, which have done everything possible to drag out the proceedings.
3. 963. SETEP adds that it has asked the local legislative body to amend article 62, section V, of the Puebla State Public Service Workers Act to revoke the prohibition of establishing more than one trade union and to allow the free establishment of trade unions in the Puebla State, but there was no positive response. In the opinion of SETEP, the present situation violates the National Constitution and Convention No. 87.
4. 964. In its communication of 15 February 2007, the new Secretary General of SETEP indicates that the complaint submitted to the Committee of Freedom of Association continues and sends the documentation on the administrative and judicial decisions since 2004 on the matter set out in this complaint.
5. B. The Government’s reply
6. 965. In its communication of 17 September 2007, the Government states that on 1 October 2004, Mr Alejandro Luna Blanco, Mr Mauro Tomás Silicia Jiménez and Ms Susana Villalobos Mantilla, representing themselves as Secretary General, Organization and Propaganda Secretary and Minutes and Decisions Secretary of SETEP, respectively, requested its registration as a trade union in the Puebla State Local Conciliation and Arbitration Board. On 29 November 2004, the local board declared that it did not have the necessary competence, and ordered the documentation to be referred to the Puebla State Arbitration Court. On 4 February 2005, the Puebla State Arbitration Court admitted the application for registration No. 1/2004, but declared that it was not competent to hear it. It therefore ordered it to be referred to the Collegiate Labour Court of the Sixth Circuit to determine which was the competent authority. The Collegiate Court decided that the Puebla State Arbitration Court was competent to decide the application for registration of SETEP as a trade union.
7. 966. The Government adds that on 21 June 2005, the Puebla State Arbitration Court refused the application submitted by SETEP, because it considered that the promoters did not comply with the provisions of article 365, paragraphs I, II, III and IV, of the Federal Labour Act, because the documentation submitted was not duly authorized by the trade union representatives in accordance with the provisions of the final part of article 366 of that Act. These legal provisions state:
8. Article 365. Trade Unions must be registered with the Secretariat of Labour and Social Security in cases where they have federal competence and with conciliation and arbitration boards for those with local competence, for which purpose they shall submit in duplicate:
9. I. an authorized copy of the decision of the constituent assembly;
10. II. a list showing the No., names and addresses of its members and the name and addresses of the employers, companies or establishments in which they provide their services;
11. III. an authorized copy of the statutes; and
12. IV. an authorized copy of the minutes of the assembly which elected the executive board.
13. The documents to which the foregoing paragraphs refer shall be authorized by the Secretary General, the organization secretary and the minutes secretary except as otherwise provided in the statutes.
14. Article 366. Registration may only be refused:
15. I. if the trade union does not fulfil the purpose set out in article 356;
16. II. if it was not formed with the No. of members set out in article 364; and
17. III. if it does not present the documents to which the previous article refers.
18. If the requirements established for the registration of trade unions are satisfied, none of the authorities concerned may refuse it.
19. If the authority to which the application for registration is submitted does not decide within sixty days, the applicants may request it to give a decision, and if it does not do so within the three days following the filing of the request, it will be deemed to be registered for all legal purposes, and the authority shall be obliged within the three days following, to issue the respective certificate.
20. 967. Contrary to the foregoing, those promoting the union filed an appeal for amparo No. 824/2005 in the Fourth District Court in Puebla State. The amparo court is the final appeal court for the majority of judicial and administrative proceedings including over legislative questions, so as to safeguard the entire national legal order against violations by any authority, provided that such violations have an actual, personal and direct effect on the rights of a legal person, whether individual or collective. On 18 August 2005, the Fourth District Court held that SETEP has produced the originals and copies for registration, whereby it requested the registration of the trade union, the minutes of the assembly, the list of workers, the minutes of the meeting of the State Executive Committee Meeting, and the statutes of the said trade union, which contain the signatures of the Secretary General, the Organization Secretary and Minutes Secretary, and it was held that those signatures granted their authorization in the said documents, since the law did not provide for a specific form for such authorization. In the light of the foregoing, the Fourth District Court, granted the promoters amparo and protection of the federal court, with the effect that the Arbitration Court should set aside the decision of 21 June 2005, and, instead, issue another which accepted the documents presented by SETEP as complying with the provisions of article 365 of the Federal Labour Act and should proceed with its registration.
21. 968. The Puebla State Arbitration Court filed for review No. 179/2005 against the decision of the Fourth District Court in Puebla State in the Collegiate Labour Court of the Sixth Circuit. As the appeal was not allowed, the judgement of the Fourth District Court remained final.
22. 969. On 8 November 2005, the Puebla State Arbitration Court entered an innominate motion for prior and special pronouncement on the existence of impediments to complying, in full, with the order of the Fourth District Court in Puebla State. The Arbitration Court alleged that it was impossible in law for it to do so, among other things, because it could not be required to apply article 365 of the Federal Labour Act in complying with the order of the Fourth District Court, on the grounds that the said provision has the same requirements for the registration of a trade union as article 62 of the Puebla State Public Service Workers Act.
23. 970. The Fourth District Court held this proceeding as unfounded because it considered that the provisions of the Federal Labour Act and the Puebla State Public Service Workers Act were the same, as both Acts contained the same requirements concerning the documentation for registration of a trade union. For that reason, it ordered the Arbitration Court to continue with full jurisdiction with the proceedings for obtaining trade union registration under article 62, paragraph V, of the Puebla State Public Service Workers Act, which states as follows:
24. Article 62. Trade Unions in the State Service shall be registered by the Arbitration Court, for which purpose they shall submit in duplicate:
25. …
26. V. The Arbitration Court, on receiving the application for registration, shall determine by such means as it considers practical and efficient, whether the applicant is the sole trade union association, or it has the majority of workers in the State, so as to proceed, if applicable, with its registration.
27. 971. In compliance with the decision of the Fourth District Court of Puebla State, on 15 December 2005, the Puebla State Arbitration Court requested the Secretary of Public Education of Puebla State to ascertain whether SETEP was the only trade union association which existed as such between education workers employed by the Secretariat or whether, on the contrary, general agreements of conditions of work with another trade union association existed, and to inform it of the number of workers belonging to it. It also ordered the Puebla State and Decentralized Agencies Public Service Workers’ Union to provide information on the number of their members, and ordered the Secretary General of the Arbitration Court to carry out a search of the Register of Trade Union Associations on the number of trade unions registered there.
28. 972. The Puebla State Arbitration Court informed the Fourth District Court in Puebla State of this situation. On 13 January 2006, the Fourth District Court issued a decision in which it held the order of 25 August 2005 in the amparo case No. 824/2005 to have been fulfilled. The said court informed the promoters of the union accordingly, giving them three days to respond, but as they did not do so, the Fourth District Court held that the Arbitration Court had essentially complied with the amparo judgement.
29. 973. In a letter of 19 January 2006, Mr Alejandro Luna Blanco, Mr Mauro Tomás Silicia Jiménez and Ms Susana Villalobos Mantilla presented a document stating that they did not agree with the reasoning whereby the Fourth District Court in Puebla State held that the Arbitration Court had essentially complied with the amparo judgement in case No. 824/2005 on 13 January 2006. The Collegiate Labour Court of the Sixth Circuit gave a decision declaring the motion of nonconformity No. T-1/2006 of 23 February 2006 founded. Its legal reasoning states expressly:
30. Following this logic, the proper course is to declare the motion of nonconformity founded. In the light of this, the impugned decision must be declared inadmissible and following the lines of the present order must require the responsible authority to comply with the protecting order, to the extent set out in this decision and which basically mean that the responsible authority must complete the outstanding proceedings or orders to issue a new decision on the admissibility or otherwise of the requested trade union registration, which must, of course, be notified to the trade union being promoted. Insofar as these acts are not completed, the District Judge must insist on compliance with the order for amparo issuing such legal warnings as it considers relevant.
31. 974. In compliance with the abovementioned decision, on 3 March 2006, the Puebla State Arbitration Court, with full jurisdiction after evaluating the information provided by the Secretariat of Public Education of Puebla State and the National Union of State Service and Decentralized Agencies Workers of Puebla State and the Secretary General of the Arbitration Court, decided that there were no grounds for granting the registration requested by SETEP because it did not satisfy the requirements of the law set out in article 62, paragraph V, of the Puebla State Public Service Workers Act, since it did not have the majority of education workers nor was it the sole trade union association, for the following reasons:
32. (a) The State Secretariat of Public Education reported that the National Union of Education Workers (SNTE), represented in that federal State by its sections 23 and 51 as having the right to conclude collective labour relations for basic workers employed by the Secretariat, is the trade union association recognized by the state government and the Secretariat. The SNTE is the sole union with which it has agreed and recognized general conditions of work. The foregoing is shown in clauses I, II and III of the agreement in the framework of the National Agreement on Modernization of Basic Education signed on 18 May 1992 by the Governor of Puebla State and the Secretary General of the Executive Committee of the SNTE, which was approved by decree of the State Congress and published in the Official Journal of the State on 9 June 1992.
33. (b) The Secretariat of Public Education indicated that the number of workers belonging to the SNTE in section 23 is 42,492 and in section 51, the number is 25,663, which is the vast majority compared with the 395 applications for membership shown by SETEP.
34. (c) The Puebla State and Decentralized Agencies Public Service Workers’ Union stated that the basic workers making up that union totalled 3,531 and that, of those, 3,424 were employed by the state authorities and the remainder, 107, worked for decentralized agencies. This shows that the Puebla State Public Service Workers’ Union has a total of 3,531 workers and SETEP has only 395 members.
35. (d) The Puebla State Education Act, fifth transitional provision, recognizes the SNTE, represented in Puebla State, through its sections 23 and 51, as being entitled to represent workers in labour relations in accordance with their current registration, while the Puebla State Public Service Workers Act, third transitional article recognizes the Puebla State Public Service Workers’ Union, constituted by a general meeting held on 8 August 1964, thus constituting the Puebla State and Decentralized Agencies Public Service Workers’ Union.
36. (e) The Secretary General of the Puebla State Arbitration Court certified that the Independent College Workers’ Union of Puebla State and the Puebla State Public Service Workers’ Union are registered in the Government Archives, Nos 1/2000 and 1/67 respectively.
37. 975. On 17 March 2006, Mr Alejandro Luna Blanco, representing himself as Secretary General of SETEP filed an appeal for amparo No. 478/2006 in the Fourth District Court of Puebla State, against the decision of 3 March 2006 whereby the Puebla State Arbitration Court decided that the application for registration by SETEP was not admissible. As part of the application for amparo No. 478/2006, Mr Alejandro Luna Blanco filed an appeal in case No. Q-16/2006 before the Collegiate Labour Court of the Sixth Circuit against the judgement of the Fourth District Court of Puebla State on 4 April 2006, in which he alleged that he was a third party prejudiced by sections 23 and 51 of the National Education Workers’ Union. The Collegiate Court held the appeal to be founded on 19 May 2006, whereupon the Fourth District Court set aside the said judgement. On 19 June 2006, the Fourth District Court of Puebla State issued a decision ordering SETEP within a period of three days after notification, not subject to extension, to inform it of the results of the election of the Secretary General of SETEP for the period 2006–09, in order to pronounce itself on the possible review of a ground for inadmissibility alleged by the Puebla State Arbitration Court, i.e., that Mr Alejandro Luna Blanco did not have the power of representation that he claimed in the appeal for amparo No. 478/2006. SETEP filed appeal No. 26/2006 in the Collegiate Labour Court of the Sixth Circuit against that judgement. On 14 August 2006, the Collegiate Court declared the appeal unfounded.
38. 976. On 20 September 2006, the Fourth District Court of Puebla State gave its judgement in the appeal for amparo No. 478/2006, staying the constitutional judgement because those promoting the trade union had not justified satisfactorily the power of representation claimed on behalf of SETEP. The Court thereby upheld the grounds for inadmissibility alleged by the Puebla State Arbitration Court, as laid down in article 73, paragraph XVIII, and article 4, both of the Amparo Act, which state as follows:
39. Article 73. The application for amparo is inadmissible:
40. XVIII. In other cases where the inadmissibility results from a provision of the law.
41. Article 4. The application for amparo may only be filed by the party prejudiced by the law, international treaty, regulation or any other act that is appealed, in person, through his representative or legal defence attorney in the case of an act which involves a criminal case, by any relative or other person in cases expressly permitted by this Act, and may only be pursued by the injured party, by his legal representative or defence attorney.
42. 977. In that judgement, the Fourth District Court indicated that on 15 March 2006, the date when Mr Alejandro Luna Blanco filed the appeal for amparo No. 478/2006, he no longer held the office of Secretary General of SETEP. That was because on 16 March 2006, when the 21st state general meeting of SETEP was held, a new state committee was elected for the period 2006–09, headed by Ms Laura Artemisa García Chávez as Secretary General.
43. 978. In the said meeting, following the declaration of the office conferred, the Secretary Generalelect, Ms Laura Artemisa García Chávez submitted for approval the workplan of the new trade union administration, paragraph 1 of which stated:
44. 1. To conclude the legal and political process of obtaining recognition of SETEP by means of the following strategies: (A) to continue the legal process initiated by Professor Alejandro Luna Blanco in accordance with the decision of the state extraordinary general meeting of 2 September 2005 and the powers conferred on me by article 24, paragraph II, subparagraphs (a) and (c) of our Statutes, Professor Alejandro Luna Blanco will continue to represent this organization in all proceedings inherent in the registration of the trade union until its full conclusion and so long as the federal and local authorities do not grant registration, he shall continue in the role in which he began the proceedings and, once the admissibility or otherwise of the registration is determined, we will inform the changes that at this date have been decided in the state administration of the union for the present administration before the corresponding labour authorities, unless a state general meeting decides otherwise …
45. 979. What is clear is that the said authorization granted by the current Secretary General to Mr Alejandro Luna Blanco to continue to exercise the office which he held at the time of submission of the application was not appropriate or sufficient for him to be recognized in law as having such authority in the appeal for amparo No. 478/2006. This is because under article 24, paragraph II, subparagraphs (a) and (c), of the statutes of SETEP, the Secretary General of the state executive committee, in addition to the powers indicated, shall have the following rights:
46. (a) To grant general or partial powers, with or without substitution clauses, to members of the legal committee or such persons as they deem appropriate, for trade union matters; and also to revoke the powers granted by himself, other executives or other organs of the trade union, whether or not in office or have ceased to hold office.
47. (c) To select and accredit members of SETEP to collaborate in its union committees of an administrative, technical, manual and management character.
48. 980. Consequently, the Fourth District Court of Puebla State determined that the Secretary General did not have the power to grant the authorization in question in the terms that she did, since under this provision, she can extend general or partial powers as described above, revoke powers granted previously by her or by other organs of the trade union, and designate members of the union to collaborate on various committees, but the authorization she claimed to justify the power to act in amparo case No. 478/2006 was not contemplated in any of these cases.
49. 981. Mr Alejandro Luna Blanco filed appeal for review No. R-186/2006 in the Collegiate Labour Court of the Sixth Circuit against the decision of the Fourth District Court of Puebla State on 20 September 2006. On 10 November 2006, the Collegiate Court upheld the decision of the Fourth District Court.
50. 982. On 5 December 2006, in giving effect to the decision of the Collegiate Labour Court of the Sixth Circuit with respect to review No. R-186/2006, the Puebla State Arbitration Court stated that it had stayed amparo case No. 478/2006, of the Fourth District Court of Puebla State, filed by Mr Alejandro Luna Blanco, and that the decision it had given on 3 March 2006, in which it ordered that the trade union registration requested by SETEP should be refused, remained final.
51. 983. The Government concludes by indicating that:
52. – The facts indicated by SETEP in its communication do not constitute failure by the Government of Mexico to comply with the principles of freedom of association and the right to organize enshrined in ILO Convention No. 87.
53. – The information provided shows that SETEP was not prevented from freely exercising its right to form a trade union. It was not prevented from exercising its right to draw up its statutes and regulations freely to elect its representatives, organize its administration and activities or formulate its action programme. Neither was the acquisition of legal personality by SETEP subject to conditions which by their nature limit the application of the provisions of articles 2, 3 and 4 of the Convention, and finally, neither Mexican law or practice diminished the guarantees set out in the said instrument.
54. – In this respect, SETEP, as a trade union organization, held its 21st state general meeting to elect a new state committee for the period 2006–09, led by Ms Laura Artemisa García Chávez as Secretary General on 16 March 2006. That meeting also approved the workplan of the union’s new administration.
55. – It was on the basis of the provisions of article 24, paragraph II, subparagraphs (a) and (c), of SETEP’s own statutes that the Fourth District Court in Puebla State had to stay amparo case No. 478/2006, as the Secretary General of the State executive committee did not have the power to grant, the way she did, the necessary authorization to Mr Alejandro Luna Blanco to pursue the said appeal.
56. – The members of the state committee had legal personality to apply to the labour and legal authorities to assert the rights of SETEP. A clear example is the amparo and protection granted by the Fourth District Court in Puebla State to the applicants in amparo case No. 824/2005, when the Court held that the law did not provide for any special formality for the Secretary General, Organization Secretary and Minutes Secretary to authorize the documents accompanying the application for registration.
57. – In the case of amparo case No. 478/2006, this could not be admitted because Mr Alejandro Luna Blanco was no longer a member of the state committee by a decision of the SETEP state general meeting of March 2006, and he did not have the authority to pursue it in accordance with the law.
58. – SETEP was able to assert its rights before the competent legal authorities, exercising the corresponding legal actions and, as applicable, the appeals and means of recourse established in the legal system.

C. The Committee’s conclusions

1. 984. The Committee observes that in this complaint, the complainant organization, SETEP, which comprises education workers in the State of Puebla, alleges that the authorities, in particular the Puebla State Arbitration Court, refused its inscription and registration as a trade union organization since it was established in October 2004. SETEP indicates that, although legal appeals had decided otherwise, the federal judicial authority finally stayed the case arguing that the person who signed the appeal for amparo no longer held the office of Secretary General of the union (the new committee of SETEP indicated, however, that it was continuing with the complaint submitted to the Committee on Freedom of Association and with the application for trade union registration). According to SETEP, there is already an official trade union and the legislation prohibits there being another.
2. 985. The Committee notes the Government’s statements from which it seems that the judgement of the Fourth District Court holding that the SETEP documents complied with the provisions of the legislation became final although the Puebla State Arbitration Court alleged in an objection that it was impossible for it to comply fully with the judgement. Based on this objection, the Arbitration Court was authorized to continue with the proceeding to obtain the trade union registration established in article 62, paragraph V, of the Puebla State Public Service Workers Act (to examine whether “the applicant is the sole trade union association or has the majority of workers in the State”). In this regard, the Arbitration Court asked SETEP to respond within three days, which it did not do. The Arbitration Court decided not to grant the registration as SETEP did not satisfy the requirements of article 62, paragraph V, above (having a majority of education workers and not being the sole trade union association). In particular, there are other trade unions: the SNTE which is the signatory of the collective agreement and the Puebla State and Decentralized Agencies Public Service Workers’ Union which have the vast majority of members compared with SETEP. The subsequent appeals by SETEP were submitted by a person who no longer held the office of Secretary General following the election of the new committee in March 2006, and the judicial decision of December 2006 refusing registration of SETEP remained final.
3. 986. The Committee regrets that the question of the registration of SETEP has dragged on from October 2004 to 2006, when the judicial authority ordered that it should not be granted in a decision that became final in December 2006, invoking problems of the (continuity of) representation of the applicant party.
4. 987. With regard to the substance, the Committee observes that the principal reasons for not granting registration lay in the previous judicial appeals, in application of article 62, paragraph V, of the Puebla State Public Service Workers Act, whereby registration requires having the majority of workers in the state and there not being another trade union organization (“it must be the sole trade union association”). In this respect, observing that the new committee of the complainant trade union continues to seek registration, the Committee wishes to emphasize that this provision is in flagrant violation of Convention No. 87, Article 2 of which enshrines the right of all workers to form such organizations as they deem appropriate. The Committee also recalls that a provision authorizing the refusal of an application for registration if another union, already registered, is sufficiently representative of the interests which the union seeking registration proposes to defend, means that, in certain cases, workers may be denied the right to join the organization of their own choosing, contrary to the principles of freedom of association [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 328].
5. 988. In these circumstances, the Committee requests the Government to take measures to ensure that the competent local authorities grant without delay the registration of SETEP irrespective of its greater or lesser representativeness, and to amend the legislation of Puebla State such that it does not impose as a condition on state workers the non-existence of a representative trade union in order to be able to register a trade union.