Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Mexico (Ratification: 1950)

Other comments on C087

Observation

Direct Request

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The Committee notes the observations of the Confederation of the Industrial Chambers of the United States of Mexico (CONCAMIN) and the Confederation of Employers of the Mexican Republic (COPARMEX) transmitted with the Government’s report.

The Committee notes the observations of the International Trade Union Confederation (ITUC), received on 1 September 2017. The Committee requests the Government to provide its comments in this respect.

The Committee notes the Government’s information relating to the observations from previous years of the ITUC and IndustriALL Global Union (IndustriALL), indicating that it will send further information on some pending issues and specifying that, for certain other issues, in particular the alleged restrictions to the right to strike by the Federal Conciliation and Arbitration Board, the observations do not provide sufficient details to enable the Government to investigate them. Lastly, the Committee notes that, as indicated by the Government, some of the allegations raised in these observations are the subject of cases before the Committee on Freedom of Association, particularly Case No. 2694, the recommendations of which the Committee refers to.

Civil liberties and trade union rights. With respect to the allegations of the ITUC and IndustriALL of 2015 and 2016 relating to acts of violence against trade unionists, the Committee requested these organizations to provide the most detailed information possible on the allegations of the deaths of four members of the National Union of Mining, Metallurgy, Steel and Allied Workers; the detention of 14 agricultural workers in March 2015; and several deaths and many persons injured, and the arrest of trade unionists, in the context of a collective dispute in the education sector in Oaxaca; as well as other allegations of acts of violence against trade unionists. The Committee notes the Government’s indication that it is still waiting for these organizations to provide further details. The Committee notes that, in its 2017 observations, the ITUC has sent greater details on the allegations in the context of the trade union dispute in the education sector in Oaxaca in June 2016, including information on the development of the events and the identities of the persons who died. The Committee requests the Government to send its comments in this respect. In addition, as regards the other allegations of attacks on civil liberties and trade union rights, observing that the Government indicates that it has insufficient information from the ITUC and IndustriALL, the Committee requests the Government, on the basis of the information available and any additional details provided by these organizations, to also send its comments in this respect.

Article 2 of the Convention. Conciliation and arbitration boards. Constitutional reform of the labour justice system. With respect to its previous comments regarding observations of workers’ organizations alleging that the operation of conciliation and arbitration boards impedes the exercise of freedom of association, the Committee notes with satisfaction the adoption and entry into force in February 2017 of the reform of the Political Constitution of Mexico, as a part of the process to reform the labour justice system that the Committee examined in its previous comments, introducing, as the main changes: that labour justice is vested with federal or local bodies of the judicial authority (to which the functions of the boards in this respect would be transferred); that conciliation procedures (a stage that in general precedes referral to the labour courts) are more flexible and effective (with the establishment of specialized and impartial conciliation centres in each federative entity); and that the federal conciliation body is a decentralized agency with responsibility for the registration of all collective labour agreements and trade unions. The Government indicates that it is coordinating a transition process which will entail harmonization of the legislation, and that the necessary development of the regulatory framework is under way – including a new unified procedural law in the area (a national code of labour procedures is under preparation) and a new Act on the decentralized body responsible for conciliation in relation to the national register of trade unions and collective labour contracts. The Government also states that, while the operations of the labour courts, the conciliation centres and the decentralized body are being initiated and institutionalized, the conciliation and arbitration boards, and other labour authorities, will continue to address disagreements and disputes that arise, including on the registration of trade unions and collective labour contracts. The Committee encourages the Government to refer the envisaged legislative developments for the implementation of the constitutional reform for tripartite consultation, and requests it to provide information on any developments in that respect, while reiterating that technical assistance of the office remains available.

Representativity of trade unions and protection contracts. In its previous observation, the Committee requested the Government, in consultation with the social partners, to continue adopting the necessary legislative and practical measures to find solutions to the problems arising out of the issue of protection trade unions and protection contracts, including in relation to the registration of unions. The Committee notes that the Government reiterates that: (i) the reform of the political Constitution as it applies to labour justice will combat all acts of deception or extortion, through the establishment of a decentralized body responsible for the registration of all trade unions in the country and collective contracts; (ii) the federal and local conciliation and arbitration boards, within the framework of the National Conference of Conciliation and Arbitration Boards, have undertaken to launch an internal dialogue process to decide whether to adopt the criteria of the plenary of the federal board for the harmonization of legal criteria; and (iii) the 2012 reforms to the Federal Labour Act (LFT) introduced mechanisms to promote free, direct and secret voting for the elections of trade union officers, as well as accountability of those leaders and provisions making public the information on the registration of trade unions, collective agreements and internal labour regulations. The Committee also notes that the Government has not provided further information on the proposed amendments to the LFT, which the Committee noted with interest, as the Government indicated in its previous report, that these had been presented, along with the proposals for constitutional reform, for the revision of the procedures for the signing, deposit and registration of collective contracts in the interests of securing full respect for trade union independence and the right to organize. The Committee therefore notes with concern the observations of the ITUC alleging that protection contracts will continue to be a regular practice and that the action taken by democratic trade unions to combat them through recount procedures has met with opposition and procedural irregularities. Recalling that the Committee has expressed concern on this matter for a number of years, and that it was highlighted in the conclusions of the Committee on the Application of Standards in June 2015, the Committee once again requests the Government, in consultation with the social partners, to take the necessary practical and legislative measures to find solutions to the problems arising out of the issue of protection unions and protection contracts, including in relation to the registration of trade unions. Reiterating that ILO technical assistance remains available and expecting that the implementation of the constitutional reform will provide an opportunity to address these problems, the Committee requests the Government to provide information on any developments in this respect, as well as in relation to the proposed reform of the LFT.

Publication of the registration of trade unions. The Committee notes the Government’s indication of a compliance rate of 85 per cent with regard to the legal requirement for conciliation and arbitration boards to publish the registration and statutes of trade unions. The Government specifies that this amounts to 24 federative entities, comprising 49 of the 57 local boards of the states having published 23,628 trade union registrations, involving 1,431,100 union members. The Government adds that the constitutional reform will place the responsibility for the registration of all collective labour contracts and trade unions, as well as all relevant administrative processes, with the decentralized conciliation body. While duly noting the progress referred to, the Committee requests the Government to continue providing information on compliance with the legal requirement to publish the registration and statutes of trade unions, and on any impact that the new constitutional reform and, in particular, the establishment of the decentralized body may have on the procedure for the registration of trade unions, including the publication of the registration of trade unions and their statutes.

Articles 2 and 3. Possibility of trade union pluralism in state bodies and the possibility to re-elect trade union leaders. The Committee recalls that for years it has been commenting on the following provisions: (i) the prohibition of the coexistence of two or more unions in the same state body (sections 68, 71, 72 and 73 of the Federal Act on State Employees (LFTSE)); (ii) the prohibition on trade unionists from leaving the union of which they have become members (section 69 of the LFTSE); (iii) the prohibition on unions of public servants from joining trade union organizations of workers or rural workers (section 79 of the LFTSE); (iv) the reference to the Federation of Unions of Workers in the Service of the State (FSTSE) as the single central trade union federation recognized by the State (section 84 of the LFTSE); (v) the legislative declaration establishing the trade union monopoly of the National Federation of Banking Unions (FENASIB) (section 23 of the Act issued under Article 123B(XIIIbis) of the Constitution); and (vi) the prohibition of officer re-election in trade unions (section 75 of the LFTSE). In its previous comment, the Committee noted the Government’s indication that, in accordance with the case law of the Supreme Court of Justice, and with practice and custom, these legislative restrictions on the freedom of association of public servants are not applied, that the provisions in question are not operative and that the legislative authorities were making efforts to update the LFTSE through legislative initiatives to amend several of the provisions concerned. The Committee notes the Government’s indication in its latest report that a legislative initiative to reform the LFTSE was presented in 2013 to amend certain of these provisions (including sections 69 and 72 of the LFTSE) and that this initiative is pending decision in the relevant legislative committees. The Government reiterates that the terms of the Convention are fully respected and indicates that five federations grouping state employees have been registered and that 148 acknowledgements of trade unions have been made. Recalling the need to ensure conformity of the legislative provisions with the Convention, even if they are in abeyance or are not applied in practice, the Committee once again requests the Government to take the necessary measures to amend the restrictive provisions referred to above in order to bring them into conformity with national case law and the Convention, and to provide information on any developments in this regard.

Article 3. Right to elect trade union representatives in full freedom. Prohibition on foreign nationals becoming members of trade union executive bodies (section 372(II) of the LFT). In its previous comment, the Committee noted the Government’s indications that: (i) section 372(II) of the LFT, which prohibits foreign nationals from becoming members of trade union executive bodies, was tacitly repealed by the amendment to section 2 of the Act, which prohibits all discrimination based on ethnic or national origin; (ii) the registration authorities do not require trade union leaders to have Mexican nationality, and this prohibition is not applied in practice; and (iii) as indicated in relation with the process of considering further legislative amendments to the 2012 labour reform, since October 2015 the Government has been awaiting the opinions of the social partners, in the context of which this matter can be assessed. The Committee notes that in its last report the Government reiterates that the legislative restriction does not apply. The Government adds that no specific case nor any complaint in this respect has been assessed and that some trade union statutes expressly recognize that foreign nationals may participate in trade union executive bodies. Recalling once again the need to ensure the conformity of the legislative provisions with the Convention, even if they are in abeyance or are not applied in practice, the Committee requests the Government to take the necessary measures to amend section 372(II) of the LFT with a view to making explicit the tacit repeal of this restriction. It further requests the Government to provide any available information on the number and position of foreign nationals who are participating in the various trade union executive bodies.

The Committee is raising other matters in a request addressed directly to the Government.