Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes the Government’s reply to the comments of the International Trade Union Confederation (ITUC) of 2008. The Committee also notes the ITUC’s comments dated 24 August 2010 which refer to the application of the Convention, as well as the murder of two trade union leaders and the illegal imprisonment of a trade union member. The Committee recalls that the right to life is a fundamental prerequisite for the exercise of the rights concerned in Convention No. 87 and emphasizes that when disorders have occurred involving loss of human life or serious injury, the setting up of an independent judicial inquiry is a particularly appropriate method of fully ascertaining the facts, determining responsibilities, punishing those responsible, remedying the damages and preventing the repetition of such actions. Judicial inquiries of this kind should be conducted as promptly and speedily as possible, since otherwise there is a risk of de facto impunity which reinforces the climate of violence and insecurity and which is therefore highly detrimental to the exercise of trade union activities (see the General Survey of 1994 on freedom of association and collective bargaining, paragraph 29). The Committee requests the Government to provide its observations in this respect.

Article 2 of the Convention. Trade union monopoly in state agencies imposed by the Federal Act on State Employees and by an Act issuing regulations under the Constitution. The Committee recalls that for many years it has been commenting on the following provisions:

(i)    the prohibition of the coexistence of two or more unions in the same state agency (sections 68, 71, 72 and 73 of the Federal Act on State Employees);

(ii)   the ban on trade unionists leaving the union of which they have become members (an exclusion clause under which trade unionists who leave the union lose their jobs) (section 69 of the Federal Act on State Employees);

(iii)  the ban of unions of public servants joining trade union organizations of workers or rural workers (section 79 of the Federal Act on State Employees);

(iv)  the extension of the restrictions applying to trade unions in general to the Single Federation of Unions of State Employees (section 84 of the Federal Act on State Employees); and

(v)   the imposition by law of the trade union monopoly of the National Federation of Banking Unions (section 23 of the Act to regulate article 123(XIIIbis)(B) of the Constitution).

In this regard, the Committee notes the Government’s indication in its report that: (i) the right of state employees to organize freely is guaranteed by article 123(X)(B) of the Constitution, which lays down the right of workers to associate in order to defend their common interests and exercise the right to strike when the rights laid down in this provision are violated generally and systematically; (ii) the implications of the ruling of the Supreme Court of Justice in the case for the protection of constitutional rights (amparo) on appeal No. 1475/98, and of rulings Nos P/J 43/1999, CXXVII/2000, 2^a LVII/2005, and other similar rulings, determining the freedom of state employees to join freely the unions which accept them, and establishing that there may be more than one union in agencies, and that trade union leaders in the sector may be re-elected, have been applied strictly be the Federal Conciliation and Arbitration Tribunal (TFCA); (iii) in this respect, three federations of state employees are registered with the TFCA, namely the Federation of Unions of Workers in the Service of the State (FSTSE), the Democratic Federation of Public Servants Unions (FDSSP) and the Federation of Banking Unions (FSB); and (iv) on 1 July 2009, an initiative was launched with a draft decree to amend various provisions of the Federal Act on State Employees issued under article 123(B) of the Constitution with the objective of promoting the freedom of state workers to organize by eliminating the ban on establishing more than one union in each agency of the public authority and repealing article 123(B)(XIIbis). The Committee notes this initiative with interest and hopes that the decree will be adopted in the near future. The Committee requests the Government to provide information in its next report on any developments in this respect.

Article 3. Ban on re-election in trade unions (section 75 of the Federal Act on State Employees). In its previous comment, the Committee requested the Government to amend section 75 of the Federal Act on State Employees to align it with the case law of the Supreme Court of Justice and bring it into conformity with the Convention and current ILO practice. The Committee notes the Government’s indication that, even though the provision has not been amended, the Federal Conciliation and Arbitration Tribunal applies the case law referred to, with the result that in practice effect is given to the provisions of the Convention, as the case law of the Supreme Court of Justice of the Nation is binding on all jurisdictional bodies in the country. Under these conditions, taking into account the planned reform of the Federal Act on State Employees, the Committee requests the Government to examine the possibility of amending section 75 to align it with the case law of the Supreme Court of Justice with a view to bringing it into conformity with the Convention and current ILO practice.

Ban on foreign nationals being members of trade union executive bodies (section 372(II) of the Federal Labour Act). The Committee notes that the Government does not refer to this matter in its report. The Committee emphasizes that foreign workers should be allowed to take up trade union office, at least after a reasonable period of residence in the host country (see General Survey, op. cit., paragraph 118). The Committee requests the Government to take this principle into account in the context of a future amendment of the Federal Labour Act and to provide information on this matter in its next report.

Limited right to strike of public officials who do not exercise authority in the name of the State and requisitioning. The Committee recalls that for many years it has been making comments and requesting the Government to amend the legislation in relation to the following issues:

(i)    State employees – including workers in the banking sector – have the right to strike only if there is a general and systematic violation of their rights (section 94, Title four, of the Federal Act on State Employees, and section 5 of the Act to regulate article 123(XIIIbis)(B) of the Constitution). The Committee considers that state employees – including employees in the banking sector – who do not exercise authority in the name of the State should be able to exercise the right to strike irrespective of whether there is a general and systematic violation of rights.

(ii)   On the other hand, section 121 of the Credit Institutions Act provides that the “National Banking Commission shall ensure that during the strike as many offices as are indispensible shall remain open and as many workers as are strictly necessary to perform the functions shall continue to work”. In this respect, the Committee observed that the National Banking Commission is not tripartite. The Committee recalls that workers’ organizations should be able to take part, should they so wish, in determining the minimum service to be maintained in the event of a strike, along with employers and the public authorities (see General Survey, op. cit., paragraph 161).

(iii)  Section 99(II) of the Federal Act on State Employees lays down the requirement that to call a strike two-thirds of the workers in the public body concerned must be in favour. The Committee recalls in this respect that, with regard to workers who do not exercise authority in the name of the State, the ballot method, the quorum and the majority required should not be such that exercise of the right to strike becomes very difficult, or even impossible in practice (see General Survey, op. cit., paragraph 170).

(iv)  Several laws on the public service (the Act to regulate railways, the Act respecting national vehicle registration, the Act on general channels of communication and the Rules governing the Ministry of Communications and Transport) contain provisions for the requisitioning of staff where the national economy could be affected. The Committee recalls that the forced mobilization of workers on strike would be justified only for the purpose of ensuring the operation of essential services in the strict sense of the term (see the General Survey, op. cit., paragraph 163) and that provisions which do not relate to essential services in the strict sense of the term (such as the Act to regulate the railways, the Act on general channels of communication and the Rules governing the Ministry of Communications and Transport) should be amended.

The Committee notes the Government’s indication in relation to these matters that legislative action lies within the competence of the National Legislative Authority and that no initiatives have been submitted during the present period in relation to the amendments that are sought. In this regard, taking into account the planned reform of the Federal Act on State Employees, the Committee requests the Government to examine, together with the social partners, the possibility of making amendments as indicated above. The Committee recalls that in this process it is possible to have recourse to the technical assistance of the Office, if so desired.

Modernization of the overall labour legislation. The Committee notes the Government’s indication that: (i) with a view to modernizing labour legislation, since 2006 the Secretariat of Labour and Social Welfare (STPS) has been promoting the modernization of the legislation in this sector, since the current Federal Labour Act dates from 1970; (ii) in this regard, the STPS reviewed various initiatives to reform the Federal Labour Act that were submitted by different parliamentary groups to the Chambers of Congress of the Union and supplemented the background paper; (iii) the background paper served as a basis for the initiative to reform, supplement and repeal various provisions of the Federal Labour Act submitted to the Chamber of Deputies on 18 March 2010; (iv) the initiative proposes the modernization of 419 of the 1,010 sections of the current version of the Federal Labour Act, including the fundamental rights of workers, both individual and collective; and (v) the objectives of the initiative of labour reform are to: (a) promote the creation of high quality jobs in the formal economy; (b) develop a culture of productivity in industrial relations; (c) facilitate conducive conditions and offer legal certainty to investors; (d) promote decent work; (e) develop transparency with a view to strengthening democracy and trade union freedoms in full compliance with the autonomy of trade unions; (f) modernize and make more flexible the delivery of labour justice; and (g) integrate new mechanisms to promote compliance with labour legislation. The Government adds that the measures related to transparency and trade union democracy include the proposal to remove the so-called “exclusion on the ground of separation” clause.

Noting that the Office has made comments on the draft reform of the Federal Labour Act, the Committee expresses the firm hope that they will be fully taken into account. The Committee suggests that the Government should continue to have recourse to the technical assistance of the Office with a view to ensuring that the text that is adopted is in full compliance with the provisions of the Convention. The Committee requests the Government to indicate any developments in this respect in its next report.