Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

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.