Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

The Committee notes the Government's report, which also contains comments by the Federation of Unions of Workers in the Service of the State (FSTSE), repeating its previous comments and makes others.

The Committee recalls that on various occasions it has pointed out that the following provisions of the Federal Act on State Employees of 1963 are not in conformity with the Convention:

- the prohibition of the co-existence of two or more unions in the same state body (sections 68, 71, 72 and 73 of the Federal Act on state employees);

- the prohibition of a worker in the service of the State from leaving the union to which he belongs (section 69);

- the prohibition of the re-election of trade union officers (section 75);

- the prohibition of unions of public servants from joining trade union organisations of workers or peasants (section 79);

- 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).

The Committee also raised objections concerning section 23 of the Act issued under point XIII bis, subsection B, section 123, of the Constitution, which institutionalises in the law the trade union monopoly of the National Federation of Banking Unions.

The Committee notes the Government's statement in its report that the Committee left aside in its comments the historical circumstances underlying the legal formulae enacted by the country in its sovereignty and, in particular, the Federal Act on State Employees, which has not been questioned by the national workers' organisations before constitutional or legal bodies. The Committee also notes that, according to the Government, the possibility in the short term of amending the provisions to which the Committee has objected is not being considered since no initiatives to amend the above Act have been submitted to the Congress of the Union neither by the federal executive nor by any trade union organisation concerned. The Government also states that Mexican law gives full protection to, and in no way violates freedom of association or the right to organise, and that the Committee should remain closer to the letter of the Convention, and to its spirit and intent.

Concerning the prohibition of the coexistence of two or more unions in the same state body, the Government quotes in its report the opinon of the FSTSE according to which the legislation recognises by name the representative bodies of groups or individuals that have obtained the majority of the votes cast by all the employees in a public body, that is, recognition of trade union representation is obtained by a majority decision provided that minority views are guaranteed their channels of expression and have the possibility of gaining access to recognition by name of their representative role in subsequent electoral processes. This means that the plurality of points of view coexisting in a trade union organisation are recognised.

The Committee wishes to point out that by virtue of Article 2 of the Convention "workers ... shall have the right to establish ... organisations of their own choosing ... ". In other words, it must be the workers, not the legislation, who determine the trade union structure that they desire at the departmental level or the level of the public body whether they decide in full freedom to form one, two or more trade unions within the same establishment. The Committee therefore once again concludes that sections 68, 71, 72 and 73 of the Federal Act on State Employees are not in conformity with the Convention.

Concerning the prohibition of the re-election of trade union officers (section 75), the FSTSE points out that a heritage that is vital to Mexican society is focused in this section, whereby the mobility of individuals or groups in public office is guaranteed. This results in the democratic exercise of public representation and is vital to the political stability of its trade union organisations. According to the FSTSE, the political events in various parts of the world emphasise the importance of mobility of groups which exercise responsibility in the State and in society as one of the mechanisms to correct the excesses of the public authorities, as illustrated by the case of Eastern European countries. Finally, according to the FSTSE, the Convention provides that the public authorities shall refrain from any interference which would restrict the right of workers' and employers' organisations to elect their representatives in full freedom, although in the case of section 75 of the Federal Act on State Employees it cannot be interpreted that this Act is identified with a public authority. Neither legally nor semantically can a legal provision take on the concept of a public authority.

In this connection, the Committee wishes to emphasise that, although the objective referred to by the FSTSE of "guaranteeing" the mobility of trade union officers fully responds to the objectives of the Convention, section 75 of the Federal Act "imposes" this mobility even in the event of the workers' organisations prefering to re-elect their trade union leaders. The Committee also wishes to emphasise that, even though the Federal Act is not identified with a public authority, this Act, and specifically section 75 thereof, emanates from the public legislative authority. In these circumstances, the Committee is bound to maintain its previous conclusions according to which the prohibition of the re-election of trade union officers restricts the right of workers' organisations to elect their representatives in full freedom, as set out in Article 3 of the Convention.

Concerning the existence and recognition by the Government of a single Federation of Unions of Workers in the Service of the State, the report contains the comments of the FSTSE, which maintain that the similarity in the interests of workers in the service of the State means that it is necessary to consider procedures and forms of organisation which are effective when bargaining with the employer. This would certainly not be guaranteed if multiple organisations existed, since they would undoubtedly produce a fragmentation effect which would be contrary to the stability, strength and effectiveness of trade union organisations. The FSTSE recognises and accepts the requirement to apply procedures and forms of participation which leave room for the various political and trade union tendencies within the Federation, but through the legal system and through collaboration between those within the various trade union tendencies.

In this connection, the Committee emphasises once again that under the terms of the Federal Act on State Employees, the Federation of Unions of Workers in the Service of the State is the only central organisation recognisd by the State (section 78) and that it is governed by the provisions relating to trade unions in the above Federal Act (section 84). In these circumstances, the Committee wishes to point out that, although for the workers it is in general advantageous to avoid a multiplicity of conflicting organisations, the imposition by law of a system of trade union unity at the level of federations is incompatible with the right of workers' organisations to establish federations and confederations (Article 5). However, the Committee points out that it is not necessarily incompatible with the Convention for the legislation to establish a distinction between the most representative organisation and other organisations, provided that this distinction is confined to the recognition of certain rights for the most representative organisation (particularly as regards representation for collective bargaining purposes or for consultation by governments).

Concerning section 23 of the Act issued under section 123, subsection B, point XIIIbis, of the Constitution, which institutionalises in the law the trade union monopoly of the National Federation of Banking Unions (FENASIB), the Government refers to recent constitutional reforms under which: the fifth paragraph of section 28 of the Constitution has been repealed and banking services have been added to section 123, subsection A, of the Constitution; and subsection B, point XIII bis has been amended.

The Committee notes that, by virtue of the recent amendments to the Constitution, public banking and credit services will no longer be provided exclusively by the State. The Committee understands from the Government's statements that workers in banking and credit institutions which are being transformed into limited companies will be governed by the Federal Labour Act, although as regards banking and credit institutions that are bodies of the federal public administration, it is unclear whether their employees will be covered by the Federal Act on State Employees or whether they will continue to be covered by the Act issued under section 123, subsection B, point XIIIbis, of the Constitution. The Committee would be grateful if the Government would supply information on developments in the legislative situation and if it would specify the trade union rights of bank employees both in the public and private sectors and on the possibility under the law of trade union pluralism at the level of federations.

The Committee observes that the Government did not comment on certain legislative provisions it had criticised.

In view of the importance of the provisions of the Federal Act on State Employees, which are not in conformity with the Convention, the Committee once again hopes that the Government will re-examine its legislation in the light of the principles set out in the Convention and that it will supply information on any measure that has been adopted or is envisaged to bring the above Federal Act into conformity with the requirements of the Convention.