Definitive Report - REPORT_NO384, March 2018

1. 388. The complaint is contained in communications dated 14 March and 22 September 2016 from the Union of Workers of the Government of the State of Chiapas (USTRAGECH).
2. 389. The Government sent its observations in a communication dated 2 March 2017.
3. 390. Mexico has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87)

A. The complainant’s allegations

1. 391. In its communications dated 14 March and 22 September 2016, the Union of Workers of the Government of the State of Chiapas (USTRAGECH) alleges that the registration and official recognition (registro y toma de nota) of the union was revoked by the Public Sector Employment Tribunal (hereinafter: the Tribunal) and also alleges the dismissal of 11 members of its central executive committee during the process of establishing the union.
2. 392. The complainant organization indicates that: (i) after industrial action to defend the rights of workers of the government of the state of Chiapas at the end of 2013, several meetings took place with a view to establishing a trade union; (ii) at some of these meetings, in particular on 17, 24 and 31 October and 7 November, the members of the union’s central executive committee were elected; (iii) on 30 November 2013, a constituent assembly was held with the participation of 1,529 workers, who signed the corresponding documents in the presence of a notary; (iv) since it was not possible to complete all the constituent formalities before the Christmas holidays in 2013, the union waited until January 2014 to submit the application for registration; (v) at the same time, on 10 January 2014, the Ministry of Public Finance and the Ministry of Infrastructure (the employer entities concerned) announced the dismissal of 11 workers who were members of the union’s central executive committee; (vi) on 9 May 2014, the Tribunal of the state of Chiapas, having accepted the application for registration, advised that two points required rectification to fulfil the legal requirements for registration; (vii) on 27 June 2014, it was verified that the rectification had been undertaken, and on 3 July the registration and official recognition of the complainant organization were granted; (viii) on 10 July 2014, the Tribunal issued the decision of registration and official recognition (a copy of which is attached by the complainant), which was adopted by the Presiding Magistrate and all the other magistrates, and the text of which indicates that fulfilment of the legal requirements was verified (including the free choice of the workers to form a union and, in particular, explicitly emphasizing the fact that the union had attached documents (cheque stubs indicating the posts held by the members) demonstrating that these were ordinary workers (and not workers occupying positions of special responsibility – trabajadores de confianza)); accordingly, the decision granted registration and official recognition of the union, which comprised 1,529 workers, together with the central committee which the union had elected; (ix) one day later, on 11 July 2014, the complainant requested certified copies of its registration and official recognition; however, the Tribunal was closed for the holiday period and its work did not resume until 4 August 2014, when the general secretary of the complainant organization repeated the request for certified copies to be issued; (x) since he did not receive the requested copies, the general secretary was obliged to hold a meeting with the Presiding Magistrate, who explained that the certified copies of official recognition would not be issued, on the orders of the then Minister of the Interior (according to the complainant, the Presiding Magistrate explained that the Minister of the Interior had claimed that the workers held positions of special responsibility; the Presiding Magistrate did not agree, since he considered that these were ordinary workers, but he was not in a position to oppose the political authority and advised the general secretary of the complainant organization to see the Minister of the Interior; and (xi) since the Minister of the Interior was on holiday, the general secretary was unable to contact him and, on the advice of his lawyer, opted to take legal action against the revocation of official recognition decided upon by the same Tribunal that had granted it only days earlier. The complainant states that its judicial defence strategy has not been successful so far, despite multiple appeals being lodged. In conclusion, the complainant notes with regret the lack of legal certainty in the judicial decisions, objects to the revocation, as a result of political pressure, of its registration and official recognition by the same Tribunal that had granted them only days earlier.
3. 393. As regards the dismissals of 11 members of its executive committee, the complainant organization considers that these were motivated by political persecution. It states that two appeals against unjustified dismissal were lodged with the same Tribunal that first granted and then revoked the official recognition of the union. The complainant points out in its additional information that the appeals for seven of the trade unionists concerned (Mr José Francisco Lázaro Camacho, Mr Robicel Heleria Loranca, Ms Esthela Trujillo Cruz, Mr Jorge Antonio Fernández Martínez, Ms Dora María Ruíz Martínez, Ms Blanca Dalia Sánchez Jerez and Mr José Manuel Fonseca Gerardo) were rejected and it attaches copies of the corresponding judicial decisions. Lastly, it indicates that a number of complaints were lodged with the judicial authorities of the state of Chiapas concerning the conduct of a number of public servants who dismissed the members of the committee. The complainant cites the corresponding complaint registration numbers (162-101-1301-2014, 163 101 1301 2014 and 168-101-1301-2014) and indicates that it has not been informed of any further developments – except with regard to applications that had to be submitted to shelve one of the complaints – by the Public Prosecutor’s Office, with subsequent confirmation from the state judge. In the complainant’s opinion, this is evidence of the collusion that exists between state bodies to deny access to justice, as a result of which it was obliged to have recourse to a federal judge.

B. The Government’s reply

1. 394. In its communication of 26 May 2016, the Government sent the observations of the authorities concerned (the Public Sector Employment Tribunal (hereinafter: the Tribunal) of the judicial authority, the Ministry of the Interior and the Public Prosecutor’s Office, all of the state of Chiapas) in reply to the complainant’s allegations.

Allegation of revocation of official recognition and registration of the complainant organization

1. 395. As regards the allegation of revocation of registration and official recognition, the Government indicates that: (i) on 24 January 2014, the complainant organization applied for official recognition of its registration; (ii) on 3 July 2014, the Tribunal granted official recognition and ordered the registration of the complainant organization, notifying it on 10 July; and (iii) on 14 July 2014, the same Tribunal adopted a decision whereby it cancelled the official recognition and registration that it had granted and informed the union thereof on 5 August 2014. According to the Government, the Tribunal cited as grounds for the aforementioned decision the fact that, when the submitted documentation was checked, the notary public did not appear to have established that the workers who had attended the assembly had declared in person that it was their “free choice as workers to establish a trade union” and that the documents submitted as proof that the workers did not hold positions of special responsibility were “not recent”. The Tribunal stated that the ruling did not entail revocation but invalidation of the previous act until the union fulfilled two procedural conditions, namely by providing proof that it was the free choice of the workers to form a union and by including the employment certificate of each employee to show that these were not workers occupying positions of special responsibility.
2. 396. The Government states that, further to this second ruling of 14 July 2014, on 7 August the complainant organization lodged an indirect amparo (protection of constitutional rights) application on account of the refusal to issue the requested certified copies, subsequently expanding the scope of the legal action by challenging the decision of 14 July 2014 invalidating the official recognition and registration of the union. On 27 October 2014, the First District Court of the state of Chiapas decided to grant amparo with respect to the issuing of the certified copies of the official recognition documents but dismissed the challenge to the decision of 14 July 2014 on grounds of being out of time – inasmuch as the 15-day deadline for the union to contest the decision, since the notification thereof on 5 August 2014, had elapsed. The complainant appealed against this ruling of 27 October 2014 and, on 1 October 2015, the First Collegiate Tribunal upheld the ruling, ordering the case to be closed.
3. 397. Moreover, on 5 September 2014 the complainant organization lodged an appeal for annulment with the Tribunal against the notification of 5 August 2014 (which notified the decision to revoke the registration and official recognition and was deemed the basis for the start of the time period for challenging the decision). The complainant alleged that the notification was not in line with the law and that it had no knowledge of it until 2 September. This appeal for annulment gave rise to a series of judicial proceedings and appeals which are still awaiting final settlement: (i) on 10 September 2014, the Tribunal dismissed the appeal for annulment; (ii) the complainant lodged an indirect amparo appeal on 13 October 2014; (iii) on 18 February 2015, the Sixth District Court of the state of Chiapas decided the amparo appeal in favour of the complainant and asked the Tribunal to issue a duly substantiated new decision with respect to the appeal for annulment; (iv) on 23 February 2015, the Tribunal issued a new decision in which it once again fully dismissed the appeal for annulment; (v) however, on 31 March 2015, the Sixth District Court issued a formal injunction ordering the Tribunal to respect the ruling, on the grounds that it had not fully complied with it; (vi) on 17 June 2015, the Tribunal again declared the appeal for annulment to be inadmissible; (vii) on 17 July 2015, the union lodged an indirect amparo appeal against this declaration; (viii) on 17 December 2015, the Sixth District Court granted amparo to the union and ordered the Tribunal to issue another duly substantiated decision with respect to its dismissal of notarial proof presented by the complainant demonstrating that its representatives were not present when the notification was supposedly made on 5 August 2014; (ix) on 27 January 2016, the Tribunal issued a new decision, again declaring the appeal for annulment to be inadmissible; (x) on 6 April 2016, the Fourth District Court for Amparo and Federal Proceedings (previously the Sixth District Court of the state) ruled that the Tribunal had not fully complied with the amparo ruling, arguing that it had omitted to express clearly the grounds for considering that the appeal for annulment was out of time, and also the reasons for considering that the time period for bringing the appeal for annulment should commence on 5 August; (xi) on 11 April 2016, the Tribunal issued a new decision in which it reiterated its declaration that the appeal for annulment was inadmissible; (xii) on 31 May 2016, the Fourth District Court for Amparo and Federal Proceedings decided that the Tribunal had complied with the decision and with the amparo ruling and, on 29 June 2016, it ordered the case to be closed; and (xiii) lastly, in February 2016, the complainant lodged another indirect amparo appeal against the decision of 27 January 2016 relating to the appeal for annulment, which was admitted and is pending. The Government indicates that once it has information on the outcome of these proceedings it will inform the Committee accordingly.
4. 398. In conclusion, the Government considers that the complainant organization has had recourse to all available channels to assert its rights and interests as a union. Furthermore, the Government recalls that the complainant has the right and possibility to submit a new application for official recognition and registration but that to date there is no evidence that the union has taken remedial action to fulfil the procedural conditions to demonstrate that it is indeed expressing the will of the workers.

Allegations of political persecution and dismissals of members of the central executive committee of the complainant organization

1. 399. As regards the allegations of dismissals, the Government reports on developments in the two labour cases, emphasizing that they are of an individual nature and do not relate to any union disputes or violations of trade union rights.
2. 400. With regard to labour case 102/F/2014 (a complaint lodged by Mr José Francisco Lázaro Camacho, Mr Robicel Heleria Loranca, Ms Esthela Trujillo Cruz, Mr Jorge Antonio Fernández Martínez, Ms Dora María Ruíz Martínez and Ms Blanca Dalia Sánchez Jerez, requesting reinstatement in their posts, the payment of outstanding wages, overtime pay and payment for statutory rest days, holidays, bonuses, half-hour breaks and recognition of seniority), the Government states that: (i) on 14 March 2014, the Tribunal admitted the complaint; (ii) on 22 May 2014, the representative of the government ministry concerned argued that the workers concerned were workers occupying positions of special responsibility, and so they were only entitled to wage protection and social security benefits; (iii) on 12 July 2016, the Tribunal considered that the workers concerned occupied positions of special responsibility and issued a ruling releasing the ministry from any obligation to reinstate the workers or pay outstanding wages, overtime pay or holiday pay, but ruled that the respondent should pay a proportion of the bonus for 2014, recognize the workers’ seniority and register them with the social security and service institute for state workers, with payment of the corresponding dues and contributions.
3. 401. With regard to labour case 103/A/2014 (a complaint lodged by Ms Elizabeth Zamora Meza, Mr Marco Antonio López López, Ms Zoila Ordoñez Ruíz and Ms Paulina Jiménez Miranda, requesting reinstatement in their posts, the payment of outstanding wages, overtime pay and payment for statutory rest days, holidays, bonuses, half-hour breaks and recognition of seniority), the Government states that: (i) on 26 March 2014, the Tribunal admitted the complaint; (ii) on 16 May 2014, the representative of the government ministry concerned argued that the complainants had been dismissed after voluntarily relinquishing their duties and that these were workers occupying positions of special responsibility and so they were only entitled to wage protection and social security benefits; (iii) on 21 January 2015, the Tribunal stated that it would hold the hearing on 17 August 2015 but the complainant lodged an indirect amparo appeal, claiming procedural delays, which was granted and as a result of which the hearing was scheduled for 22 May 2015; (iv) the ministry concerned lodged two appeals to combine the cases, as a result of which the scheduled hearings were suspended and the cases in question were combined; (v) on 20 June 2016, the evidentiary hearing was held but the corresponding ruling has not yet been issued since evidence still needed to be examined; and (vi) however, on 2 August 2016, the Tribunal issued a definitive ruling in which the ministry concerned was released from any obligation to reinstate Mr Marco Antonio López López but was instructed to settle some of his financial claims.
4. 402. The Government adds, with regard to the allegations of unjustified dismissals, that the intervention of the State Commission for Human Rights (CEDH) should be highlighted. On 14 January 2014, the workers concerned filed a complaint with the CEDH against the employing entities alleging misuse of authority, cruel and/or degrading treatment and harassment at work, as a result of the termination of their duties. The complainants stated that they were non-unionized ordinary workers in active service. After conducting its investigation and analysing the facts, the CEDH decided on 20 January 2014 that it was not competent to deal with this dispute between employers and workers, it referred the complainants to the competent body (the Tribunal) and decided to close the case.
5. 403. As regards the alleged complaints to the judicial authorities, the Government indicates that the relevant consultations were held with the Public Prosecutor’s Office of the state of Chiapas in relation to the registration numbers indicated by the complainant organization (162-101-1301-2014, 163-101-1301-2014 and 168-101-1301-2014) and no reference to the existence of those registrations was found. The Government affirms that, since there has been no indication of the authorities before which the complaints in question were brought, it is not in a position to make comments in this respect.
6. 404. In conclusion, as regards the allegation of political persecution, the Government considers that the complainant organization has not supplied information to substantiate the allegation.

C. The Committee’s conclusions

1. 405. The Committee observes that the complaint is concerned with allegations of revocation of the official recognition and registration (toma de nota y registro) of the complainant organization, and also of political persecution and dismissals of members of its central executive committee.
2. 406. As regards the allegation of revocation of the official recognition (registration) of the trade union, the Committee notes the Government’s indication: (i) that the contested decision of the Public Sector Employment Tribunal (hereinafter: the Tribunal) did not entail revocation but invalidation of the previous act (of registration and official recognition) until the union fulfilled two procedural conditions, namely by providing proof that it was the free choice of the workers to form a union and by including the employment certificate of each employee to show that these were not workers holding positions of special responsibility (trabajadores de confianza); and (ii) that the complainant did not attempt to fulfil these requirements and instead lodged a long series of judicial appeals and applications for amparo (protection of constitutional rights). As regards these proceedings, the Committee observes that, according to the Government’s statements, although the courts ruled in favour of the complainant in several amparo appeals (at times questioning the grounds put forward by the competent authority – the Tribunal – for some of its decisions), the challenge to the invalidation of the trade union registration was rejected, on the grounds that it had been submitted outside the applicable time limit. Moreover, the Committee has taken note of the fact that the last amparo appeal that was pending went against the complainant (on 3 October 2016, the Fourth District Court for Amparo and Federal Proceedings dismissed the amparo, on the grounds that the contested decision had been replaced by a subsequent decision issued by the Tribunal on 11 April 2016). Furthermore, the Committee observes that: (i) the Tribunal, as the competent authority for registration, during its examination of the file in the months following the submission of the application for official recognition and registration, identified the particulars that were missing from the application and communicated what was needed to comply with the law, whereupon the complainant fulfilled all the additional requirements imposed; (ii) on the basis of the amended application, the Tribunal unanimously granted the official recognition and registration, by a decision indicating that fulfilment of the various legal requirements had been verified (including the free choice of the workers to form a union and, in particular, explicitly pointing out that the union had attached documents proving that the workers concerned were ordinary workers and not workers holding positions of special responsibility); (iii) five days later, the Tribunal, of its own accord, modified its position, stating that two particulars that it had considered verified in its previous decision (the standard status of the workers and their wish to form a union) required the provision of further proof. While the Committee has no means of assessing the implications of the two additional requirements imposed by the competent authority and the difficulties that might be involved in achieving compliance (for example, whether it implies reconvening a constituent assembly which would require the renewed attendance of all 1,529 workers concerned and obtaining the relevant supporting documentation from each of them), the Committee recalls that although the founders of a trade union should comply with the formalities prescribed by legislation, these formalities should not be of such a nature as to impair the free establishment of organizations [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 276]. The Committee expects the Government to take all necessary steps, in consultation with the complainant, to ensure the registration and official recognition of the complainant organization as quickly as possible.
3. 407. As regards the dismissals of the workers appointed to the central executive committee of the complainant organization, the Committee notes that various legal proceedings were instituted and that, according to the information provided, while the rulings relating to three workers are still pending, in all the other cases, which have already been settled, the Tribunal rejected the allegation that the dismissals were unjustified. Moreover, the Committee notes that the Government emphasizes that all these judgments are individual and do not relate to any trade union issues. This being the case, and observing that discrimination is alleged on various grounds (in particular, on the basis of sex and in relation to lack of appreciation) in the legal proceedings brought by the complainant but is not alleged on anti-union grounds, the Committee will not pursue its examination of this allegation.