Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the Government’s report on the application of the Convention in relation to the points set out below:

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 and the Constitution:

(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 (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 once again expresses the firm hope that the Government will take measures to repeal or amend these legislative provisions with a view to bringing them into line with interpretative opinion No. 43/1999, issued by the Supreme Court of Justice of the Nation on 27 May 1999. Indeed, the Committee notes with interest that by virtue of this opinion the exercise of the right to organize of Mexican workers is guaranteed by the ruling that the imposition of a single trade union for a government department violates the right of workers to freedom of association set out in article 123(B)(X) of the Political Constitution. The Committee once again requests the Government to inform it in its next report of any measure 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, according to the Government, it is not currently being envisaged to reform the above legislation. Nevertheless, the Committee recalls that the autonomy of organizations can be effectively guaranteed only if their members have the right to elect their representatives in full freedom. The public authorities should therefore refrain from any interference which might restrict the exercise of this right as regards conditions of eligibility of representatives. The Committee expresses the firm hope that the Government will find the most appropriate formula for amending the above provision so that foreign workers have access to trade union office, at least after a reasonable period of residency in the host country, or where there is reciprocity between countries, for at least a specific proportion of trade union officers. The Committee requests the Government to provide information in its next report on any measure envisaged in this respect.

3.  Right to strike of employees in banking institutions belonging to the public sector.  The Committee refers once again to the restrictions on the right to strike of employees in banking institutions belonging to the public sector (section 5 of the Act issued under article 123(B)(XIIIbis) of the Constitution of 1990), and in particular the limitation on the exercise of the right to strike in the sense that employees in the public service may only call a strike in the event of the general and systematic violation of the rights set out in article 123(B) of the Constitution (section 94 of the Federal Act on State Employees). Although the Committee notes that, according to the Government, employees of banking institutions, who are covered by article 123(A) of the Constitution, can exercise the right to strike, it is nevertheless bound to observe that this is a limited right. While recalling 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 on freedom of association and collective bargaining, 1994,paragraph 148), the Committee emphasizes that, although in certain circumstances strikes may be governed by provisions laying down conditions for, or restrictions on, the exercise of this fundamental right (General Survey, op. cit., paragraph 151), in borderline cases respecting restrictions on the public service, one solution might be to provide for the maintaining 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 (General Survey, op. cit., paragraph 158). The Committee therefore once again requests the Government to take the necessary measures to amend the provisions which are in violation of the Convention, so that the legislation is explicitly adjusted to reflect national practice and the principles of freedom of association. The Committee also requests the Government to keep it informed in its next report of any measure adopted in this respect.

4.  Right to strike of state employees.  The Committee recalls that in its previous comments it also referred to the requirement of two-thirds of workers in the public body concerned to call a strike (section 99(II) of the Federal Act on State Employees). The Committee notes that, according to the Government, the repeal of the provision setting out this requirement is not currently envisaged. The Committee recalls that public servants who do not exercise authority in the name of the State should benefit from 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 keep it informed in its next report of any positive developments in this respect.