Interim Report - Report No 350, June 2008

1. 1242. The present complaint is contained in communications presented by the International Metalworkers’ Federation (IMF) on 30 March 2006 and by the National Union of Miners, Metalworkers and Allied Workers of the Republic of Mexico (SNTMMSRM) on 21 and 29 November 2006. The IMF provided documentation on the case on 14 December 2006.
2. 1243. The Government sent its observations contesting the receivability of the case in communications dated 1 November 2006 and 26 February 2007, which were forwarded to the complainant organizations.
3. 1244. On 28 March 2007, the IMF replied to the Government’s communication concerning the receivability of the case, forwarding the comments of the complainant union. The IMF sent new allegations in a communication dated 29 January 2008.
4. 1245. The Government sent new observations in communications of 10 July 2007 and 2 and 14 May 2008.
5. 1246. Mexico has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants’ allegations

1. 1247. In its communication dated 30 March 2006, the IMF denounces the direct and arbitrary intervention of the Government in the internal affairs of the SNTMMSRM in view of the removal from office of its Secretary-General, Napoleón Gómez Urrutia (a position to which he was elected by decision of the union’s 32nd Ordinary General Assembly of 2002) and of its executive committee.
2. 1248. The IMF considers it unacceptable that the Secretary of Labour should have intervened directly to remove Napoleón Gómez Urrutia from office, replacing him with another leader, with the indication that “action was taken in accordance with the law and at the express request of the rank and file membership”, and also that the bank accounts of the union were frozen under the pretext of a petition by the union’s General Vigilance and Justice Council on the grounds of charges made against Napoleón Gómez Urrutia, but overlooking the need for such matters to be examined by the bodies that are legally competent to do so.
3. 1249. This misguided decision resulted in the indefinite stoppage of work on 1 March 2006 by over 270,000 workers in the 130 branches of the SNTMMSRM throughout the Republic to demonstrate their repudiation of Elías Morales Hernández, the “provisional” leader imposed by the Secretary of Labour in open violation of trade union independence. The workers are also calling for recognition of the status of Napoleón Gómez Urrutia as the leader of the union.
4. 1250. The paralysis of work is also in protest at the tragic accident (the pit gas explosion) which occurred on 19 February of the same year in shaft No. 8 of the Unidas Pasta de Conchos mine in San Juan de las Sabinas, State of Coahuila, which resulted in the deaths of 65 workers and several serious injuries. Civil society associations, family members of the miners and rescue groups denounced a series of irregularities which, taken as a whole, particularly in relation to safety conditions, do not suggest an accident, but “a criminal act in violation of the duty of care (section 9 of the Federal Penal Code – CPF)”, involving liability in administrative, union, penal and labour matters which needs to be investigated.
5. 1251. In its communications of 21 and 29 November 2006, the SNTMMSRM indicates that on 16 February 2006, without justification and without conducting any investigations in accordance with articles 275, 276, 277, 301, 303, 304, 342 et al. of the statutes and declaration of principles which govern the internal affairs of the union, Juan Luis Zúñiga Velásquez allegedly and Juan Pablo Patino Rocha, in their capacity as first and second members, respectively, of the General Vigilance and Justice Council, penalized and removed from office all the members of the executive committee of the union, without at any time holding a prior hearing. For these reasons and in view of the failure to comply with the internal rules of the union referred to above, the decision was unlawful and therefore void, under the terms of article 342 of the statutes cited above.
6. 1252. Juan Luis Zúñiga Velásquez allegedly and Juan Pablo Patino Rocha, in their capacity as first and second members, respectively, of the General Vigilance and Justice Council, acted in violation of the statutes and declaration of principles which govern the internal affairs of the union, to the prejudice of all the members of the National Executive Committee, who were removed from office and penalized. The statutes provide that: “before the application of a penalty, the General Vigilance and Justice Council, under the terms of these statutes, shall ensure that an investigation is conducted demonstrating that the fault in question was committed, and when the findings of the investigation have been received its application may be ordered if it is considered appropriate until the case is resolved. In cases of the expulsion or desertion of members of the General Vigilance and Justice Council, the terms of the chapter of these statutes on discipline shall be applied”. The Council also has the power to order investigations, raising their findings to the level of rulings where it considers it necessary, or to issue final decisions applying the penalties envisaged in the chapter on discipline. Under the terms of the statutes: “in no event shall the General Vigilance and Justice Council use methods other than those set out in these statutes for the application of penalties”. Furthermore, in violation of the union’s statutes, at no time did the members of the General Vigilance and Justice Council indicate to the members who were punished the charge or charges against them so that the appropriate disciplinary procedure could be followed, nor did they establish a file containing evidence of the fault or offences that they were alleged to have committed, or record the testimony of the witnesses who gave evidence against them or that of the members who were penalized, with the result that there was no record of the investigations conducted prior to the imposition of the penalty.
7. 1253. Moreover, it should be emphasized that the General Vigilance and Justice Council was under the obligation, once in possession of the findings of the investigation, if any, within a period of no more than 90 days from the receipt of the charges, if any, against Mr Napoleón Gómez and the members of the National Executive Committee, to draw up the corresponding penalties and to notify all the branches and chapters of the union of the respective facts through a circular for their examination and approval, or to submit it to an assembly, if one was being held, or to the next assembly to be held, provided that it was to be held within six months. Upon receipt of the above circular, the branches and chapters had to refer the decision to their local vigilance and justice councils so that, following examination, they could report their findings to an extraordinary assembly for discussion, approval, disapproval or amendment, with the obligation for the branches and chapters to submit their decision with the record of proceedings of their assembly to the General Vigilance and Justice Council within 90 days of the receipt of the circular. Once the responses of the branches and chapters had been received, the Council was under the obligation to analyse the responses and, if they found against those charged, to apply the corresponding penalty. It may be deduced that, taking into account only the completion of the examination by the General Vigilance and Justice Council and the replies of the branches and chapters, the process of penalizing the members of the National Executive Committee and the General Vigilance and Justice Council requires a period of 180 days, or six months. It is not therefore logical that the members of the national executive committee who were penalized had not been notified of the disciplinary procedure set in motion against them or that it did not come to their knowledge during that period. This demonstrates the bad faith and malice with which the General Vigilance and Justice Council acted in imposing the penalty and also shows that at no time was the disciplinary procedure followed that is set out in article 319 of the statutes. The decision issued by the Council is therefore void as it does not meet any of the requirements established for the imposition of penalties, which were therefore unlawful.
8. 1254. Notwithstanding all the anomalies and violations indicated above, on 17 February 2006 the Secretary of Labour and Social Insurance, through the General Directorate of the Registry of Associations, received the documentation allegedly penalizing Napoleón Gómez Urrutia and the other members of the national executive committee. Without conducting a detailed examination of the documentation or ensuring that it was in accordance with the provisions of the statutes and the declaration of principles governing the internal affairs of the union, the General Directorate of the Registry of Associations, on the same date of 17 February 2006, issued Decision No. 21121076 in case 10/670-9 acknowledging the “interim” designation of the new members of the National Executive Committee and of the President of the General Vigilance and Justice Council of the union, implying the cancellation of the acknowledgement that it had issued previously concerning the executive committee and disavowal of the members of the National Executive Committee who had been lawfully recognized in those documents. In so doing, it was in violation of ILO Convention No. 87 and article No. 128 of the union’s statutes, which provide that: “the ordinary and extraordinary assemblies shall elect the members of the National Executive Committee and of the General Vigilance and Justice Council, as well as the worker representatives on the Federal Conciliation and Arbitration Board, the representative of the union on the Technical Council of the Mexican Social Security Institute and the worker representative on the administrative board of INFONAVIT. They shall also propose a candidate for membership of the jury of the Board referred to above.”
9. 1255. In the present case, despite the fact that the General Directorate of the Registry of Associations is not empowered to withdraw an acknowledgement issued in respect of union representatives, at no stage did the Directorate ascertain that the procedures set out in the union’s statutes and declaration of principles had been followed in penalizing and removing from office the members of the National Executive Committee. Nor did it examine whether the requirements set out in the union’s statutes were fulfilled for the appointment of the new interim officers of the National Executive Committee. The General Directorate of the Registry of Associations acted not only in violation of Convention No. 87, but also placed itself in the absurd situation of being in breach of article 19(II) and (III) of the internal rules of the Secretariat of Labour and Social Insurance (STPS). Under the terms of article 19(III), the Directorate was under the obligation to determine the origin of any documentation submitted by the General Vigilance and Justice Council seeking the cancellation of an acknowledgement of the members of the union’s national executive committee, and also when issuing the acknowledgement of the persons who were appointed to act in the interim as the new officers of the national executive committee and as President of the General Vigilance and Justice Council. At no stage did it do this since, if it had examined the application and the required supporting documentation, it would have noted that it had been drawn up in breach of the statutes and declaration of principles governing the internal affairs of the organization.
10. 1256. It is also absurd, as well as being incongruous and derisory, that Juan Luis Zúñiga Velásquez allegedly and Juan Pablo Patino Rocha, in their capacity as first and second members, respectively, of the General Vigilance and Justice Council, submitted on 16 February 2006 the documentation referred to repeatedly and that on the same day the General Directorate of the Registry of Associations issued the provisional acknowledgement of the new officers. This is particularly the case as, on each occasion that applications have been lodged for changes in the officers of the union the Directorate takes approximately three or four months to issue the respective acknowledgement since, in view of the obligation set out in article 19(III) of the internal rules of the STPS, it has always conscientiously examined the documentation submitted for the registration of changes in the officers of the union. This shows that the Directorate failed to comply with the above provisions when taking action.
11. 1257. Moreover, none of the documentation that was allegedly submitted to the General Directorate of the Registry of Associations of the STPS, through which it was allegedly informed of the penalties imposed on the members of the union’s national executive committee and the appointment of the new members of the committee, was authentic in view of the fact that Juan Luis Zúñiga Velásquez, in his capacity as first member of the General Vigilance and Justice Council, never signed a document removing from office and penalizing any member of the national executive committee, nor did he appoint on an interim basis other persons to executive posts in the union. This is the finding of the examination carried out by the specialist, Yolanda K. León Ramírez, which clearly shows that the signatures of Juan Luis Zúñiga Velásquez, first member of the General Vigilance and Justice Council, are false, meaning that none of the documentation that was used and submitted to the General Directorate of the Registry of Associations for the removal from office and the appointment of the new members of the national executive committee was authentic.
12. 1258. In view of the foregoing, on 3 March 2006, Juan Luis Zúñiga Velásquez appeared before Armando Gálvez Pérez Aragón, public notary No. 103 of the City of Mexico, Federal District, for the purpose of certifying his signature and the content of documents sent to the General Directorate of the Registry of Associations, in which he certifies that he never signed a document for the removal from office and the appointment of the members of the national executive committee. His testimony was set out in Act No. 114079 at his request. On the same date of 3 March 2006, the public notary mentioned above issued Act No. 114084, in which he certified that he had drawn up the documents in which Juan Luis Zúñiga Velásquez certified his signature and the content of the document contained in Act No. 114079 referred to above. The General Directorate of the Registry of Associations never examined this issue, nor did it provide any reply.
13. 1259. The complainant union adds that its national executive committee, in accordance with article 111 of the statutes and declaration of principles governing its internal affairs, on 6 February 2006 issued Circular No. 66 to the branches and chapters of the national mining organization which are affiliated to the union, containing the convocation for the holding of the 34th Ordinary General Assembly from 2 May 2006. The work of the assembly was concluded on 13 May 2006 and various decisions were adopted, including one in which the assembly “unanimously approves the appointment of the Secretary-General, the National Executive Committee and the General Vigilance and Justice Council, and their substitute members (under the leadership of Napoleón Gómez Urrutia)”.
14. 1260. On 19 May 2006, the Secretary-General of the union, after fulfilling all the requirements set out in the statutes and declaration of principles, submitted to the General Directorate of the Registry of Associations of the STPS all the documentation relating to the 34th Ordinary General Assembly of the union so that an acknowledgement could be issued of the election and approval of the National Executive Committee.
15. 1261. According to the allegations, on 16 June 2006, the General Directorate of the Registry of Associations notified the union of a decision of 15 June 2006 requiring the clarification of various points in relation to the 34th Ordinary General Assembly, which in its view constituted irregularities in the holding of the assembly. Accordingly, on 23 June 2006, the legal and substantive clarifications were provided, as required. In these circumstances, and despite the fact that all the statutory requirements were fulfilled in relation to the holding of the assembly, it was not until 22 August 2006 that the General Directorate of the Registry of Associations issued the corresponding resolution in which, without any legal basis, attempting to use the statutes to its own ends and based on a series of pretexts, it adopted an administrative decision “refusing” to issue the acknowledgement that had lawfully been sought from it, thereby once again being in violation of Convention No. 87. This is particularly the case when it is taken into account that, under the terms of article 104 of the statutes and declaration of principles, general assemblies are the “highest authority” of the union and their decisions may not be “challenged”. Accordingly, if it was the wish of all of the workers who are members of the union to elect and approve the National Executive Committee and the General Vigilance and Justice Council, as determined by the delegates accredited to the 34th Ordinary General Assembly, there can be no question that the only decision that could be taken by the administrative authority was to note the wishes of the assembly and issue the corresponding “acknowledgement”.
16. 1262. Prior to the 34th Ordinary General Assembly referred to above, on 9 March 2006, over two-thirds of the branches and chapters of the union, in accordance with articles 104, 109 and 111 of the statutes and declaration of principles governing the internal affairs of the organization, convened the union’s “Second Extraordinary General Assembly”, to be held as from 10 a.m. on 18 March 2006. As all the requirements set out in the statutes and declaration of principles had been fulfilled, the work of the Second Extraordinary General Assembly began at the time and on the date indicated, with the assembly taking various decisions, including the following:
17. – Solution. Approval of the members of the National Executive Committee and of the General Vigilance and Justice Council, including the approval of the Secretary-General, Napoleón Gómez Urrutia.
18. – Resolution. To require that any alleged replacement of the members of the National Executive Committee and of the General Vigilance and Justice Council shall be categorically disavowed, robustly denying the validity of the acknowledgement issued by the STPS on 17 February of this year, imposing persons outside the union who had been expelled on charges of subversion, fraud and treason against the national union, who presumably continue to work in “Grupo México” and are faced with pending decisions against them, and reiterating that Napoleón Gómez Urrutia shall be recognized as Secretary-General by the single and exclusive decision of the miners, metalworkers and steelworkers of the country.
19. – Resolution. If for any reason the STPS, through the General Directorate of the Registry of Associations, should refuse to issue the acknowledgements arising out of this Second Extraordinary General Assembly based on the internal sovereignty of the union as conferred by its own statutes and the Federal Labour Act, Napoleón Gómez Urrutia is reconfirmed as the sole leader and Secretary-General, as are the members of the National Executive Committee. In any issue relating to legal, contractual or administrative representation, or in any other act in which it is so required, the only person authorized to appear in such acts shall be Napoleón Gómez Urrutia or any member designated by him. With a view to the immediate cessation of actions and/or charges against the Secretary-General, the National Executive Committee and all the affiliates of the national mining system, an in-depth investigation shall be conducted into the rumour concerning the existence of an alleged act through which it was claimed to replace the members of the National Executive Committee and of the General Vigilance and Justice Council and, where appropriate, to bring charges against Benito Ortiz Elizalde, Elías Morales Hernández, José Martín Perales Lozano, Martín Téllez Salazar and Miguel Castilleja Mendiola in relation to the offences, calumny, defamation and moral damages caused to the members of the committee and all the members of the union at the national level.
20. 1263. On 29 March 2006, the General Directorate of the Registry of Associations issued the corresponding resolution in which, also without any legal basis and in an attempt to use the union’s statutes and declaration of principles to its own ends, it made the administrative decision to “refuse” to issue the acknowledgement that had lawfully been sought from it, thereby once again being in violation of Convention No. 87 of the International Labour Organization and of the provisions of the union’s statutes and declaration of principles.
21. 1264. One of the principal arguments put forward by the General Directorate of the Registry of Associations for refusing to issue the acknowledgement that had been lawfully sought from it in relation to the outcome of both the Second Extraordinary General Assembly and the 34th Ordinary General Assembly held in May was that the quorum was allegedly not met for the holding of these assemblies. In this respect, the above authority indicates that the latest acknowledgement of the list of members of the union covers 66,448 workers, as indicated in Decision No. 1022240-1206919 of 7 October 1998, although these figures are very far from the actual situation. Following the holding of the 33rd Ordinary General Assembly at which the officers of group “C” of the National Executive Committee were elected, the authority required verbal confirmation from the union of the list of its members. Under these circumstances, in communications dated 4 June and 23 July, this requirement was met and the General Directorate of the Registry of Associations was provided with the list of all the active branches and chapters of which the union is composed, which means that it is impossible that the list kept by the authority corresponded to the real situation. Once these requirements had been met, the authority indicated on 2 August that it had issued to the union the acknowledgement of the members of group “C” of the National Executive Committee.
22. 1265. Thus, already in 2004, the General Directorate of the Registry of Associations acknowledged the real number of branches and chapters of which the union was composed in that year, yet now completely unlawfully and in violation of freedom of association takes into consideration a list of members for the year 1998, which is absurd and totally incongruous.
23. 1266. In its communications of 21 and 29 November 2006, the complainant union provides a summary of the situation in relation to the mining dispute.
24. 1267. On 17 February 2006, the first essential action taken by the Government against the union was the illegal removal from office of the Secretary-General, the National Executive Committee and the General Vigilance and Justice Council which had been elected democratically and in accordance with the statutes and declaration of principles that are in force in the union. In so doing, the Government gave effect to a decision that was false and not authentic, which had allegedly been submitted by the General Vigilance and Justice Council with a view to removing from office and at the same time installing a new executive.
25. 1268. The flaws evident in this act are wide-ranging and blatant. They demonstrate the clear involvement and complicity of the labour authorities. The consequences of these acts served to prolong the crisis and to cause the deaths of two workers.
26. – First flaw: the labour authority recognized and gave effect, within very few hours, to a document with a major impact on the life of the union which was not verified as required by its most essential function, which is precisely to ensure compliance with the statutes in the procedures followed by unions.
27. (1) The Secretariat of Labour (SL) did not ascertain the validity of the signatures on the documents submitted by the group imposed by the Government.
28. (2) The SL did not ascertain with the union the status of the Secretary-General who was imposed and the proposed officers, who were not active members of the union.
29. (3) The SL did not verify the powers and scope of the General Vigilance and Justice Council, which does not have the power to act unilaterally and without the participation in the plenary session of the National Executive Committee for the removal from office of its Secretary-General.
30. (4) The SL did not ascertain that democratically elected substitute members of the National Executive Committee cannot be penalized or removed from office until they have taken office or explicitly renounced their functions.
31. (5) The SL did not ascertain that a new secretary-general cannot install a new National Executive Committee. There exist substitute members and democratic internal procedures for this purpose that have been duly registered by the authority.
32. – Second flaw: with the connivance of the federal Government, was to support a person as an imposed Secretary-General who had been expelled from the union by the Ordinary General Assembly of May 2000, when irrefutable proof was provided through the presentation of detailed evidence of his betrayal of the workers and promotion of the interests of entrepreneurs such as Grupo México and Grupo Villacero.
33. – Third flaw: the validity of an unlawful procedure of removal from office was maintained by the failure to take into account the document of 28 February, as certified by a notary, in which one of the two signatories of the alleged decision concerning removal from office submitted to the labour authority indicates and certifies that he did not sign the document, which means that the document concerned is immediately considered void. In this respect, an examination was carried out by an expert graphologist certifying that the signature was false.
34. – Fourth flaw: the SL did not recognize that the Extraordinary General Assembly of 18 and 19 March was held lawfully, that in light of the irregularities outlined above it was convened in accordance with the statutes as the union’s highest democratic body by over two-thirds of the union’s branches and chapters in the country with the fundamental objective of approving Napoleón Gómez Urrutia as Secretary-General, as well as the National Executive Committee and the General Vigilance and Justice Council. It should be recalled that it takes months and sometimes years of very detailed verification to issue an acknowledgement but that, as noted above, the same authority took only hours, with no verification, to support and validate its imposed ally.
35. – Fifth flaw: the insistent intervention of the Secretary of Labour by attempting, through the media, to promote procedures for the election of union officers that were not in accordance with the Federal Labour Act and the union’s statutes, going against public opinion in insisting on maintaining his stupidity through the flawed and unlawful decisions described above.
36. – Sixth flaw: the tremendously and fatally irresponsible use of federal forces of order and those of the State of Lázaro Cárdenas Michoacán, with workers being murdered and dozens suffering bullet wounds. The forces of order launched a surprise action using firearms, armed helicopters and over 900 troops. But the attempt to clear the premises was a failure due to the bravery of the unionists, who stood firm armed with their courage and the support of the community as a whole. The strike has since continued for 48 days.
37. – Seventh flaw: this flaw has been permanent from the first day, since when the presidential spokesperson and other federal officials involved have maintained a constant campaign of defamation, slander, intimidation and repression, which is completely unlawful and has been directed principally at the Secretary-General, his family and the members of the National Executive Committee and of the General Vigilance and Justice Council. Three months later, there is still no proof whatsoever of the charges.
38. – Eighth flaw: in addition to all of the above, the alleged removal from office by the General Vigilance and Justice Council would involve the obligation under the statutes and even the most elementary law for the persons concerned to be notified of the alleged charges and to have the opportunity to defend themselves.
39. – Ninth flaw: the evident complicity should be noted in the fact that, although the removal of office had been acknowledged and the subject of widespread comment since 17 February, the union was not notified or informed through any public media until 28 February, or over ten days after the decision was taken and following the unnecessary tragedy of Pasta de Conchos on 19 February, when 65 miners lost their lives.
40. 1269. The negligence and complicity in this tragedy of the authorities of the SL and Grupo México were described by the mining union and its Secretary-General, Napoleón Gómez Urrutia, as industrial homicide.
41. 1270. According to the allegations, in the Mexican context, Grupo México is an enterprise that does not invest in safety or the maintenance of equipment and installations. It is protected by the federal Government and acts with impunity and in complicity with the labour authorities. In support of the above, the union knows that, according to safety experts, the tragedy of Pasta de Conchos could have been prevented if the company had invested no more than US$2 million in degassing the mine and in additional escape and ventilation shafts.
42. 1271. It is important to make it clear that the political persecution faced by the mining union, the National Executive Committee and its Secretary-General, Napoleón Gómez Urrutia, has been evident throughout the apparatus of the federal Government, from the secretariat of Government and the SL right up to the Office of the President of the Republic.
43. 1272. The union steadfastly opposed a labour reform that was totally contrary to the interests of the workers and a fiscal reform that endeavoured to impose additional taxes on the wages and social benefits of the working classes, and has endeavoured to slow down the abuse of outsourcing, which is displacing unionized labour.
44. 1273. In addition, the mining union has consistently obtained wage increases that are coherent with the recovery of the industry and are much higher than the national average, as well as promoting social programmes offering workers better education, protection for their families and decent housing.
45. 1274. With regard to the fabricated charges made by this network of corruption in relation to the resources of the mining fund, the following needs to be reiterated: (1) the resources are a moral and legitimate triumph following a 15-year struggle; (2) these resources have always been held in the union’s accounts and the closure of the trust was lawful; (3) the lawful owner of the resources is the national union, with the workers as indirect beneficiaries, which is not the situation that has been perversely spread about by both Grupo México and the federal Government to fuel the conflict; (4) nine months after this orchestrated attack, absolutely nothing has been proven and the fabricated charges have failed in the courts despite the constant obstacles raised to hinder the action of the defence; and (5) it should be noted that the union has accepted, without being under any statutory obligation to do so, to seek the certification of a recognized auditor of the correct use of the above fund. In this regard, at least two international companies of auditors have refused to participate with the mining union for reasons of conflicts with their interests in Mexico. This means that they do not wish to be involved in political issues. Other options are being examined through the IMF in Geneva.
46. 1275. Notwithstanding these obstacles, the defence has been making slow but conclusive progress. The fabricated charges of money laundering have been set aside by four federal courts. Recently, a court in Jalisco definitively suspended proceedings in favour of the Secretary-General, Napoleón Gómez Urrutia, and the National Executive Committee on the grounds that the federal authorities had not given the latter the opportunity to defend himself as they had not notified him of the charges in detail. There have also been other cases of progress, such as the release of certain union members who had been arbitrarily imprisoned.
47. 1276. In their communication dated 28 March 2007, the complainant organizations make the following comments concerning the Government’s contention that the complaint is not receivable. The complainants reiterate their allegations in detail and emphasize that the actions of the General Directorate of the Registry of Associations are in contravention of the applicable legal provisions and the union’s statutes, and are therefore in clear violation of the right of freedom of association and the protection of the right to organize.
48. 1277. In the light of the foregoing, the Government of Mexico’s claim is false that the removal from office of the National Executive Committee of the union had its origins in an internal union conflict. Moreover, even if that had been the case, the General Directorate of the Registry of Associations was under the obligation to observe each and every relevant legal provision and to recognize that the withdrawal of the acknowledgement by the administrative authority and the appointment of the new members had been undertaken in violation of the union’s statutes and declaration of principles. Yet, with the support of the STPS and the Government of Mexico itself, the Directorate engaged in deceit and maintained its position in order to evade the responsibility that it knew perfectly well it had in this dispute.
49. 1278. The Mexican Government avoids mentioning the other provisions contained in article 58 of the union’s statutes, which establish the obligation for the General Vigilance and Justice Council in all cases to ensure that a prior investigation is conducted demonstrating that the fault in question has been committed, with the possibility when the findings of the investigation are received to order its extension until the case is resolved. The Council is also under the obligation to initiate investigations, raising their status to that of legal action, and in no event may the General Vigilance and Justice Council adopt methods other than those set out in the statutes for the imposition of penalties. Nevertheless, the investigation was not carried out and statutory disciplinary proceedings were not set in motion. Instead of examining this situation, the General Directorate of the Registry of Associations acted to the prejudice of the union’s executive committee by removing it from office and appointing an interim committee.
50. 1279. In its interim observations, the Mexican Government also indicates that the provisional appointments made by the General Vigilance and Justice Council “… are subject to approval or amendment by the next ordinary or extraordinary assemblies …”, but omits to mention that, due to its failure to comply with its obligations, it never ascertained that the members of the General Vigilance and Justice Council do not have the power to appoint on an interim basis other members of the National Executive Committee, as article 128 of the union’s statutes and declaration of principles clearly establishes that “the ordinary and extraordinary assemblies shall elect the members of the National Executive Committee and the General Vigilance and Justice Council”. The persons who were appointed on an interim basis do not therefore meet the requirements set out in articles 41 and 42 of the statutes.
51. 1280. The Government indicates that on 18 and 19 March 2006 an extraordinary assembly was held in which it was decided to “… amend the decision of the General Vigilance and Justice Council and, therefore, to set it aside so that Napoleón Gómez Urrutia and his National Executive Committee could continue to lead the organization …”. The terms used by the Government of Mexico are inaccurate as the assembly categorically denied the validity of the provisional acknowledgement issued by the General Directorate of the Registry of Associations on 17 February 2006, which indicated that the alleged appointments made by the General Vigilance and Justice Council remained provisional until the holding of the next ordinary or extraordinary general assembly, in which the new members would be approved or amended; as the acknowledgement was unlawful, the extraordinary general assembly in question adopted various decisions (as indicated in previous paragraphs).
52. 1281. The Mexican Government contends that the General Directorate of the Registry of Associations did not issue the requested acknowledgement as the convocation for the extraordinary assembly (March 2006) was not valid and because the necessary quorum was not attained. The decision issued by the General Directorate on 29 March 2006 indicates that the participation was accredited of only 77 branches and chapters of the 262 recognized by the General Directorate. However, this statement was false and unlawful, as publicly recognized recently by the Secretary of Labour and Social Insurance, who indicated that, having reviewed its records, there were 70 branches at that time. Accordingly, if the records of the General Directorate of the Registry of Associations were not up to date when it issued its decision, the situation cannot and could not be attributable to the union.
53. 1282. The decision issued by the General Directorate of the Registry of Associations was challenged by Napoleón Gómez Urrutia through an action seeking protection in the Fourth District Labour Court in case No. 745106. In this respect, the Government of Mexico argues that the reasons for invalidity indicated by the STPS include in particular: “… lack of legal interest and acceptance of the impugned act, as the complainants are challenging the decision refusing to issue the acknowledgement of the executive committee, but have called for another different executive committee to be acknowledged …” since, when a different ordinary general assembly was held from 2 to 13 May 2006, a request was made for acknowledgement of the National Executive Committee elected at that assembly, which differs from the committee elected on 18 and 19 March 2006. For that reason, Napoleón Gómez Urrutia and the other members of the former committee have lost their legal interest in the impugned decision, as the grounds for the refusal no longer exist.
54. 1283. The arguments put forward by the Government of Mexico are groundless and devoid of any legal merit. Although it is clear that the ordinary general assembly held from 2 to 13 May 2006 appointed different members to those approved by the extraordinary general assembly, this was due to the restructuring of the groups of members of the National Executive Committee, as the mandate of certain members ended in May 2006. Accordingly, the members elected at the ordinary general assembly will fill those posts. It is therefore logical that some of the members of the National Executive Committee and the General Vigilance and Justice Council elected at the ordinary general assembly were different from those approved by the extraordinary general assembly.
55. 1284. With reference to the ordinary general assembly held in the City of Mexico, Federal District, from 2 to 13 May 2006 (which was held in accordance with the specific provisions of articles 108 and 109 of the statutes), the General Directorate of the Registry of Associations once again refused to issue an acknowledgement on the basis of the decisions taken by the assembly. It once again argued in its decision issued on 22 August 2006 that the respective quorum had not been met for a valid meeting to be held and that there had been irregularities in the holding of the assembly. This is both false and unlawful since, as indicated above, the union does not have 262 branches, as arbitrarily indicated by the General Directorate. Moreover, this decision was challenged by Napoleón Gómez Urrutia by means of a petition for the protection of rights which is before the Fourth District Labour Court as case No. 1393/06.
56. 1285. The Government indicates that it gave full support and provided the facilities so that an expert examination could by carried out by the Office of the Attorney-General of the Republic to determine whether or not a fake signature of Juan Luis Zúñiga Velásquez was contained in the documentation submitted for the removal from office and appointment of members referred to in the acknowledgement issued on 17 February 2006. The Government nevertheless fails to mention that, on 3 March 2006, Juan Luis Zúñiga Velásquez notified the General Directorate of the Registry of Associations that, in his capacity as first member of the General Vigilance and Justice Council, he never signed any document for the removal from office and penalization of Napoleón Gómez Urrutia or any member of the National Executive Committee, nor did he appoint on an interim basis other persons to executive posts in the union. The General Directorate never took these facts into account.
57. 1286. In this respect, emphasis should be placed on the statements made on 26 February of the present year by the former Under-Secretary of Labour, Emilio Gómez Vives, in relation to the indication by Zúñiga Velásquez that his signature was not authentic, and who stated publicly in various media that “… it was decided at the highest level of the Government to undertake an expert comparison of the signatures …” and that “… the findings of the expert analysis were issued verbally, not in writing, with the authority finding that the signature was 98 per cent certain to be authentic: we received the documentation in good faith …”. However, this is contrary to any legal logic, as an expert examination of this nature cannot be undertaken “verbally”, nor can it determine with only 98 per cent certainty that the signature is authentic or contend that the authority acted in “good faith” since, in such cases, it is under the obligation to verify the documentation submitted through all lawful means. These elements once again serve to confirm the series of flaws in the procedures followed by the labour authorities of the Government of Mexico.
58. 1287. With reference to the conclusions reached by the Government of Mexico, they are without foundation and devoid of legal merit. They only serve to demonstrate that it is endeavouring to divert attention from the responsibility that it has and has had since the beginning of the conflict. Contrary to its protestations, there have been violations of freedom of association and interference by the authorities in the internal affairs of the union.
59. 1288. The union, through Napoleón Gómez Urrutia, has been able to take action to defend its rights and those of its leaders in view of the unlawful decisions issued by the General Directorate of the Registry of Associations. Nevertheless, it should be noted that nearly one year after lodging the various applications for amparo (protection of constitutional rights) against the action of the General Directorate, there has still been no response, which demonstrates the total and absolute partiality of the federal labour authorities in favour of the Government, leaving the union at a total legal disadvantage.
60. 1289. The General Directorate of the Registry of Associations has no basis in fact, and particularly in law, for its unlawful decisions. It is sufficient in this respect to recall that it set aside an acknowledgement of the members of the executive of a union without any court ruling finding against the union or authorizing the General Directorate to take such a decision.
61. 1290. In its communication of 29 January 2008, the complainant provides extensive documentation on the present case. It also expresses its indignation at the continued attack by the Mexican Government on the union, as illustrated by the use of the police forces and soldiers to break strikes; the continued violation of the civic rights of members of the SNTMMSRM through assaults, intimidation and arbitrary arrests; serious violations of internationally recognized labour rights involving duplicity by the Government and manipulation of the facts and the law; and the full complicity of the SL of Mexico at the time of the facts, which helped Grupo México to establish a counter-union to undermine the SNTMMSRM.
62. 1291. Moreover, the crimes committed against the SNTMMSRM under the previous Government have still not been solved. The union’s accounts have been illegally frozen since 16 February 2006. In two Mexican states, arrest warrants against Napoleón Gómez Urrutia are still in force, based on false information which has been the subject of federal investigation. Members of the SNTMMSRM continue to receive death threats and are subject to unlawful detention ordered by the local and federal authorities.
63. 1292. The violations of the trade union rights of the SNTMMSRM include the following:
64. (a) On 16 February 2006, the Mexican Government confiscated the accounts of Alejandro Gómez Casso, Ernesto Gómez Casso, Napoleón Gómez Urrutia, Oralia Casso de Gómez, Napoléon Gómez Casso, various union officials and other relatives and friends of the Gómez Casso family. No warning was given of the confiscation and an act of this nature has no basis in Mexican legislation.
65. (b) At 6 p.m. the following day, 17 February 2006, the main offices of the SNTMMSRM in the city of Mexico were attacked by Elías Morales (who had been expelled from the union in 2000) and accomplices, armed with sticks, pistols and knives, according to witnesses. They ransacked the offices, destroying property and stealing confidential information relating to US$55 million in a fund owned by the union since the privatization of three Grupo México mines. They also stole important information relating to both the accounts and the administration of the union and its leaders. Four of the attackers were arrested, but were released two hours later without any explanation by the authorities. Up to the present, none of the stolen documents have been recovered.
66. (c) Two days later, there was an explosion of methane gas in shaft No. 8 of the Pasta de Conchos mine, owned by Grupo México, the largest mining company in the country. Sixty-five miners were buried in the explosion. Up to now, the company has only recovered two of the corpses, while the other 63 are still missing. In April 2007, the company announced that it would suspend indefinitely the search for the bodies. The IMF provided the SL with a list of specialists in mine recovery operations in an effort to cooperate with the Government of Mexico to find the bodies. Up to the present time, the Government of Mexico has not approached these specialists to investigate the explosion in Pasta de Conchos.
67. (d) Since the mine tragedy, Napoleón Gómez Urrutia, the democratically elected Secretary-General of the SNTMMSRM and member of the executive committee of the IMF, has been denouncing Grupo México and the national Government, accusing them of “industrial homicide” due to the disregard for health and safety standards in the mine. In the meantime, the Public Prosecutor of the State of Coahuila has concluded the investigation into the explosion and issued arrest warrants for the executives of Grupo México and officials of the SL in relation to the explosion. Furthermore, a serious of independent investigations have found grave safety violations by Grupo México and the SL. Very recently (on 5 October 2007), a Congress committee found Grupo México guilty of the explosion in Pasta de Conchos and concluded that the company had acted in a “negligent” manner. Nevertheless, those responsible for the explosion have not been prosecuted.
68. (e) Between 17 and 28 February 2008, the authorities carried out an investigation of the alleged mismanagement of the union’s trust fund of US$55 million and Napoleón Gómez Urrutia was removed from his position as Secretary-General of the SNTMMSRM by the then interim Secretary of Labour, Francisco Javier Salazar. The election was based on false documents and manipulation of the Mexican legal system. Even now, all the charges against Napoleón Gómez Urrutia have not been withdrawn, while no charges have been brought against those who unlawfully concealed information, distorted the law and falsified documents.
69. (f) On 28 February 2006, the Government announced that Elías Morales would be the new Secretary-General of the SNTMMSRM. Elías Morales who, according to certain sources, has business ties with Grupo México and is not a member of the union, as he was expelled on 19 May 2000 for having accepted bribes from officials in the company.
70. – The illegal appointment of Elías Morales as an executive of the union was carried out on the basis of a document with the forged signatures of two members of the General Vigilance and Justice Council. This has been certified by a graphological study in the presence of a public notary, to whom those concerned certified that the signatures were not theirs and that they were not aware of their falsification. Moreover, another study by a handwriting expert concluded that five of the signatures on the document used by the SL to remove Napoleón Gómez Urrutia from office were false.
71. – Furthermore, the executive committee of the SNTMMSRM was never notified of the unlawful removal from office of Napoleón Gómez Urrutia and the imposition of Elías Morales. Napoleón Gómez Urrutia was not given the opportunity to defend himself in a public hearing, nor was an extraordinary general assembly convened. All the acts were carried out in the office of the then Secretary of Labour and only ten minutes were required to acknowledge the appointment of Elías Morales. It is important to note that even under optimal conditions a procedure of this type has never taken less than six months and, in certain cases, has gone on for up to four years.
72. – The unlawful removal from office of Napoleón Gómez Urrutia is a violation of the statutes of the SNTMMSRM, the federal labour legislation, the Constitution of Mexico and ILO Convention No. 87, to which Mexico is a signatory.
73. (g) Humberto Moreira Valdés, Governor of the State of Coahuila, Mexico, where the Pasta de Conchos mine is located, has stated in public that the former President of Mexico compelled the Governor to implicate Napoleón Gómez Urrutia in the Pasta de Conchos mine tragedy.
74. (h) According to the complainants, it was indicated in the press in March 2007 that the Office of the Public Prosecutor was carrying out a judicial investigation into the former Public Prosecutor of Mexico and the Deputy Public Prosecutor for having failed to disclose a report by the National Banking and Currency Commission which confirmed that Napoleón Gómez Urrutia had not committed the crime of money laundering in relation to the trust fund of US$55 million. The article also revealed that the information was deliberately omitted from a federal report on Napoleón Gómez Urrutia, which had been sent to San Luis de Potosí, Sonora and Nuevo Léon so that warrants could be issued for his arrest.
75. (i) In April 2007, a federal court in Mexico ordered the Secretary of Labour, Javier Lozano Alarcón, to officially recognize Napoleón Gómez Urrutia as Secretary-General of the SNTMMSRM. The unanimous ruling was handed down by a court composed of three judges. The judges found that the Secretary of Labour had exceeded his authority and had failed to comply with the established procedures.
76. (j) An independent audit revealed that the whole of the fund of US$55 million belonging to the SNTMMSRM had been accounted for, thereby exonerating Napoleón Gómez Urrutia, Secretary-General of the SNTMMSRM, of all charges of theft and misappropriation of funds. The audit was commissioned by the IMF and carried out by Horwath Berney Audit SA of Geneva, Switzerland. The findings were published on 4 September 2007. The accounts of both the union and the personal accounts of Napoleón Gómez Urrutia are still unlawfully frozen, despite the overwhelming proof that he committed no crime.
77. (k) A declaration signed by 17 members of the Executive Committee of the IMF, which represents metalworkers in 13 countries, was sent to the President of Mexico, Felipe Calderón, and to the Governors of Sonora, José Eduardo Robinson Bours Castelo, San Luis Potosí and Marcelo de los Santos Fraga, where charges are still pending against Napoleón Gómez Urrutia in the local courts. On 5 September 2007, sympathy action was undertaken outside Mexican embassies throughout Latin America, during which the members called on the Government of Mexico to:
78. – release with immediate effect all the frozen accounts owned by Napoleón Gómez Urrutia and the union;
79. – withdraw all charges that are still pending against Napoleón Gómez Urrutia;
80. – prosecute immediately in transparent procedures all those responsible for the falsification of documents and the misrepresentation of the facts; and
81. – investigate the involvement of Grupo México in the recent murder of Reinaldo Hernández González, a miner and member of the SNTMMSRM.
82. (l) The Mexican Government is continuing its persecution of the SNTMMSRM and its members. Miners and their families are continually being subjected to beatings, death threats, kidnappings and unlawful arrest.
83. – On 20 April 2006, armed police officers and soldiers attacked the Sicartsa steelworks in the city of Lázaro Cárdenas, where the workers were engaged in a protest strike against the unlawful removal from office of Napoleón Gómez Urrutia. The police and the military opened fire against the workers, including firing from a helicopter, killing two workers and injuring over 100, all of whom were unarmed.
84. – María Elena de los Santos, wife of Mario García Ortiz, member of the executive of the SNTMMSRM, was abducted from her home while her son was sleeping. She was beaten and subjected to death threats because of “her husband’s errors”. They blindfolded her and took her to an undisclosed location. They tied her wrists up behind her, as well as her feet, without tightening the rope. After a while she managed to unfasten the rope from her feet and hands. She seized the opportunity and ran through the wood to a house, where she sought refuge. Both she and her son are afraid to be alone in their house. Mario García Ortiz is convinced that the Grupo México or the Government are behind the abduction. No investigations have been carried out and no charges brought for this crime.
85. (m) Grupo México, with the full cooperation and protection of the Mexican Government, is acting outside the law. The company is able to engage with impunity in intimidation, subversion and the murder of members of the SNTMMSRM, as well as manifestly disregarding occupational safety and health standards and the fundamental rights of workers. The Government is abusing its authority in protecting and covering up for the criminal acts of Grupo México.
86. (n) The complainant organization refers to allegations concerning Narcozari and Cananea, which may be summarized as follows:
87. – the fatal shooting – according to witnesses – of Reinaldo Hernández González, member of the complainant union, and the capture of 20 other members who were tortured and detained for over 24 hours; the complainants indicate that these acts occurred following an ambush of buses belonging to Grupo México; the family was denied access to the corpse for a number of days;
88. – the establishment by Grupo México with the assistance of the SL of an enterprise union in opposition to the complainant union; it is alleged that pressure was placed on workers to vote (under the surveillance of the public security forces) for the new union, with no possibility to vote in secret;
89. – the declaration of the strike at Cananea as being illegal and the violent expulsion of the strikers, who were in the entrance to the mine, by 700 police officers and soldiers (600 are still occupying the mine) who fired rubber bullets and tear gas, resulting in over 20 miners being injured and others detained.
90. B. The Government’s reply
91. 1293. In its communication dated 1 November 2006, the Government affirms that the claims of the IMF concerning the alleged direct and arbitrary intervention by the authorities of the Government of Mexico in the internal affairs of the SNTMMSRM are false and that there is therefore no violation of the principle of freedom of association, as indicated below.
92. 1294. The events recounted by the IMF are the result of an internal union conflict, consisting of the decision by the General Vigilance and Justice Council of the SNTMMSRM to remove from office the National Executive Committee of that union. These matters are accordingly outside the scope of examination by the Committee on Freedom of Association, as confirmed by the following decisions of the Committee:
93. A matter involving no dispute between the government and the trade unions, but which involves a conflict within the trade union movement itself, is the sole responsibility of the parties themselves [see Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, fourth (revised) edition, 1996, para. 962].
94. Conflicts within a trade union lie outside the competence of the Committee and should be resolved by the parties themselves or by recourse to the judicial authority or an independent arbitrator [see Digest, op. cit., fourth (revised) edition, 1996, para. 972].
95. In cases of internal conflict, the Committee has pointed out that judicial intervention would permit a clarification of the situation from the legal point of view for the purpose of settling questions concerning the management and representation of the trade union federation concerned. Another possible means of settlement would be to appoint an independent arbitrator to be agreed on by the parties concerned, to seek a joint solution to existing problems and, if necessary, to hold new elections. In either case, the government should recognize the leaders designated as the legitimate representatives of the organization [see the Digest, op. cit., fourth (revised) edition, 1996, para. 973].
96. For the same reasons, the Government does not accept the complaint and considers that the Committee on Freedom of Association should not examine the present communication.
97. 1295. Nevertheless, with a view to contributing in good faith to the work of the Committee on Freedom of Association, and taking into account that its mandate is confined to examining communications concerning alleged infringements of the principle of freedom of association and the right to collective bargaining, the Government takes the opportunity to comment on those aspects of the IMF’s communication related to this principle.
98. The (IMF) denounces the alleged direct and arbitrary intervention of the Government authorities in the internal affairs of the National Union of Miners, Metalworkers and Allied Workers of the Republic of Mexico in view of the removal from his functions, on 17 February 2006, of its Secretary-General, Napoleón Gómez Urrutia, to which position he had been elected by decision of the union’s 32nd General Ordinary Assembly of 2002.
99. 1296. The Government explains that the extraordinary general assembly of the SNTMMSRM did indeed recognize Napoleón Gómez Urrutia as Secretary-General of the union on 25 June 2001. The Government registered this decision on 26 November 2001 through an acknowledgement of the restructuring of the executive committee of the SNTMMSRM.
100. 1297. Notwithstanding the above, on 16 February 2006, the General Vigilance and Justice Council of the SNTMMSRM – using the powers conferred upon it by article 275 of the union’s statutes – took the decision to remove from office its National Executive Committee, and consequently its Secretary-General, Napoleón Gómez Urrutia.
101. 1298. The General Council also appointed on an interim basis other persons to fill the executive positions, under the leadership of Elías Morales Hernández. In accordance with the decision of the General Vigilance and Justice Council, the removal from office of Napoleón Gómez Urrutia and the rest of the National Executive Committee of the SNTMMSRM had its origins in their allegedly improper conduct to the prejudice of the members of the union, consisting essentially in the misappropriation of the amount of US$55 million from a trust set up in favour of the workers in the union.
102. 1299. On 17 February 2006, under the terms of section 377(II) of the Federal Labour Act, members of the General Vigilance and Justice Council of the SNTMMSRM requested the General Directorate of the Registry of Associations of the STPS to acknowledge the decisions adopted on 16 February 2006, consisting of penalties and the removal from office of the titular and substitute members of the National Executive Committee, as well as the President of the General Vigilance and Justice Council and his substitute, and the appointment of new members of the committee and of the President of the General Vigilance and Justice Council.
103. 1300. The General Directorate of the Registry of Associations, in compliance with the wishes of the workers as expressed through the decisions of their competent internal body, after examining the documentation submitted and once it had been ascertained that it complied with the legal requirements and the terms of the union’s statutes, decided to acknowledge the decisions taken on 16 February on an interim basis until the appointments were approved or amended by the next national assembly. The General Directorate of the Registry of Associations issued the acknowledgement on the basis of the following legal provisions:
104. Federal Labour Act
105. Section 377. The duties of unions shall be: …
106. II. To notify the competent authority with which they are registered, within a period of ten days, of changes in their officers and amendments to their statutes, accompanied by authorized copies in duplicate of the respective records of proceedings; and …
107. The General Vigilance and Justice Council complied with its duties and autonomously requested the General Directorate of the Registry of Associations of the STPS to acknowledge the decisions taken on 16 February 2006.
108. Internal rules of the Secretariat of Labour and Social Insurance
109. Article 19. It shall be the responsibility of the Directorate of the Registry of Associations: …
110. III. To determine the origin of the record of changes in the officers of unions, federations and confederations, additions and resignations of their members, as well as amendments to their statutes and, where appropriate, to register such changes and modifications; …
111. The General Directorate of the Registry of Associations fulfilled this responsibility by registering the communication from the competent body of the union.
112. Statutes of the SNTMMSRM
113. Article 56. The obligations and functions of the General Vigilance and Justice Council shall be to: …
114. XII. Consider and resolve within the statutory time-limits accusations that are made against the majority or the full membership of local vigilance and justice councils of branches by local executive committees or individual members of the union. Through its disciplinary decisions, the General Vigilance and Justice Council shall create the necessary and compulsory union custom and practice, and the principles that it adopts in relation to the application of penalties shall not be varied, except by decision of an assembly. Nor may the General Vigilance and Justice Council advocate a principle relating to the functions of a meeting or union officials on a specific occasion and later decide to the contrary, as such a discrepancy in its views invalidates the discharge of the Council’s role. …
115. Article 57. In addition to the obligations and functions referred to in the previous Article, the Council shall discharge the following vigilance functions:
116. I. Ensure due observance of the rights of the members and compliance by the latter with their duties.
117. II. Ensure strict compliance with contracts of employment, statutes, agreements, regulations, laws, etc. by the union and its members.
118. III. Ensure that the representative bodies of the union and the members of which they are composed comply faithfully with their duties.
119. IV. Monitor and closely review the accounts of the group so that they are always up-to-date. The majority or all of the members of the Council shall be involved in such review, which shall be carried out at least once a month.
120. If the accounts and their results are correct they shall be approved by the General Vigilance and Justice Council and in any case the findings of the inspection shall be communicated on a monthly basis.
121. V. The Council shall ascertain the existence of funds with the treasurer whenever it is deemed necessary with a view to verifying that such funds are correct. Where this is not the case, it shall immediately intervene and shall notify the National Executive Committee so that the action is taken forthwith that is in the best interests of the union.
122. VI. Review with unlimited powers the union’s correspondence and documents and intervene in all matters at any time and in any manner that it considers necessary.
123. VII. Constantly review the execution of the plan of work drawn up by assemblies with a view to ensuring its implementation.
124. VIII. Ensure that appropriate effect is given to the legal decisions adopted by assemblies.
125. IX. Any other functions that are deemed germane to its duties.
126. Article 58. In addition to the obligations and functions referred to in Article 56, the Council shall discharge the following functions in relation to justice: …
127. III. Consider, upon receipt of a complaint from any member of the union, any irregularities committed by union officials, those appointed to the various bodies of the union, with the duty to act immediately, not only ordering appropriate measures to suspend the accused from their functions, but also, in the light of any serious evidence or indications at its disposal, handing them over to the ordinary judicial authorities to try and ensure the interests of the union, without prejudice to the judicial effects set out in these statutes. If it is found that any members have acted in breach of these statutes or to the prejudice of the property of the organization, in any of its branch institutions, the General Vigilance and Justice Council, with the strictest vigilance, shall ensure that accused persons empowered to dispose of funds do not misappropriate the deposits entrusted to them and shall act with the greatest rapidity and the fullest of powers to guarantee the interests of the members of the organization. …
128. V. Consider the accusations made against members of the National Executive Committee, conducting the necessary investigations and where appropriate invoking their liability.
129. Article 215. Elections for the general officers of the National Executive Committee and the General Vigilance and Justice Council shall be held on the occasion of ordinary general assemblies, and only where such officers die, resign or lose their jobs, whether they are titular or substitute members, during the course of their mandate, may replacements be appointed on an interim basis in plenary sitting of the National Executive Committee and the General Vigilance and Justice Council, and approved or amended by the next ordinary or extraordinary general assembly.
130. Article 275. No member may be penalized without first having been heard with due process in compliance with the formalities set out in this text. Exceptions from this provision shall be made in cases in which the General Vigilance and Justice Council or the honour and justice commission of assemblies are in possession of clear proof and documentation against an official or member, in which case the above Council or the honour and justice commission shall take immediate action applying the corresponding penalty in order to prevent further prejudice to the branch or to the union in general, as well as cases in which the member has failed to divulge loss of employment, and her or his home or residence is not known, or where such member is a fugitive or evading judicial action, in which case the notifications shall be issued and the proceedings conducted in the bodies of the union branches where the court proceedings are located and on up to three occasions with an interval of three working days between each notification. All workers who are penalized irrespective of the penalty applied shall be able to appeal to the next assembly for the reconsideration of their case.
131. Article 333. The General Vigilance and Justice Council shall be empowered when provided with firm evidence to initiate proceedings, issue rulings and apply the penalties envisaged in Articles 284, 286, 287, 289, 290, 291, 292, 294, 295, 296, 297, 298, 299, 300, 302, 303, 304, 305, 306, 307 and 308; such penalties shall be final and it shall be for the Council to decide in accordance with the evidence and documents at its disposal whether it is necessary to conduct an investigation of the accused member or official.
132. It is clear that the SNTMMSRM’s statutes envisage the possibility of changing leaders and within these limits it is clearly an internal matter for the union.
133. 1301. It should be noted that in the Mexican legal system the acknowledgement of decisions by unions only has the effect of noting such decisions, their statutes and changes in their officers, and that it cannot therefore be deemed interference in their internal affairs.
134. 1302. If the General Directorate of the Registry of Associations had not issued the acknowledgement, it could have incurred liability on the following grounds:
135. (1) Administrative liability. Such omission by the General Directorate of the Registry of Associations would have amounted to failure to discharge the duty set out in the Federal Act on the administrative responsibilities of public servants, under the terms of which:
136. Section 8. All public servants shall have the following duties: …
137. XXIV. Refrain from any act or omission which implies failure to comply with any law, regulation or administrative provision related to the public service.
138. Section 13 of the Act also establishes penalties for administrative faults to which a public servant may be liable if found to have committed such faults.
139. (2) Penal liability. It could be inferred that a public servant committed the offence envisaged in the Federal Penal Code, under the terms of which:
140. Section 215. Public servants shall be deemed to have committed the offence of abuse of authority when they engage in any of the following types of conduct: …
141. III. When the public servant unduly delays or denies to individuals the protection or service that the public servant is under the obligation to provide to them or impedes the lodging or processing of complaints; …
142. 1303. After the General Directorate of the Registry of Associations had issued the acknowledgement of the decisions adopted by the members of the General Vigilance and Justice Council of the SNTMMSRM on 16 February 2006, Napoleón Gómez Urrutia and other members of the former National Executive Committee of the SNTMMSRM filed amparo action No. 397/06 against this decision with the Fourth District Labour Court of the Federal District. The amparo proceedings are still continuing.
143. 1304. On 23 March 2006, documents were submitted to the General Directorate of the Registry of Associations originating from a meeting called the “extraordinary national assembly” of the SNTMMSRM held in Monclova, Coahuila, on 18 and 19 March 2006, in which it was agreed to reinstall the national executive committee that had been removed from office by the union’s General Vigilance and Justice Council. The General Directorate of the Registry of Associations considered itself unable to issue the acknowledgement of the decisions adopted at that meeting in view of the failure to comply with section 371(VIII) of the Federal Labour Act and the statutes of the SNTMMSRM in relation to the quorum required both to convene an extraordinary national assembly and to consider such an assembly validly constituted.
144. 1305. In this respect, it should be noted that it is the responsibility of the STPS to ensure that the requests submitted comply with each and every requirement set out in the laws that are in force in order to guarantee the principle of legal certainty, based on section 40(I) and (IX) of the Organic Act respecting the Federal Public Administration, sections 356, 357, 358, 359, 360, 364, 366, 368, 371, 373, 377 et al. of the Federal Labour Act and article 19 of the Internal Rules of the STPS.
145. 1306. In accordance with this decision, Napoleón Gómez Urrutia and the other members of the former National Executive Committee of the SNTMMSRM filed another amparo action against the decision of the General Directorate of the Registry of Associations, as case No. 745/06, with the Fourth District Labour Court of the Federal District. The amparo proceedings are still continuing.
146. 1307. On 19 May 2006, the General Directorate of the Registry of Associations received the application made by Napoleón Gómez Urrutia and others for an acknowledgement to be issued of the decisions adopted at the meeting known as the “34th Ordinary National Assembly” of the SNTMMSRM, held from 2 to 13 May 2006. On 15 June, the General Directorate made a number of comments on the information submitted by the applicants to the effect that it did not comply with the requirements set out in the law or the statutes. On 23 June 2006, the SNTMMSRM branch submitted a reply to the comments of the General Directorate of the Registry of Associations.
147. 1308. Napoleón Gómez Urrutia and other members of the former National Executive Committee of the SNTMMSRM filed an amparo action against the alleged omission of the General Directorate of the Registry of Associations in failing to issue an acknowledgement further to the application of 19 May 2006. These amparo actions were examined as case No. 968/06 by the Second District Labour Court of the Federal District which, on 16 August 2006, found in favour of the plaintiffs and ordered the General Directorate of the Registry of Associations to issue a decision in respect of the request for acknowledgement filed on 19 May 2006.
148. 1309. It should be noted that effect was given to the above ruling rapidly, as on 23 August 2006 notification was given of the decision adopted by the General Directorate of the Registry of Associations on 22 August 2006 in which it refused to issue the requested acknowledgement on the grounds that the information submitted did not meet the various requirements set out in law and in the statutes.
149. 1310. The Government reaches the following conclusions:
150. (1) The acts described by the IMF in its communication do not constitute an infringement by the Government of Mexico of the principle of freedom of association and the right to organize as set out in ILO Convention No. 87. The events reported by the IMF are derived from an internal conflict within the SNTMMSRM, which has its origins in the removal from office of Napoleón Gómez Urrutia and the rest of the union’s National Executive Committee, carried out by the union’s General Vigilance and Justice Council. The Council adopted a decision in which it noted alleged unlawful acts to the prejudice of the members of the union.
151. (2) In accordance with its duties as established by law, the General Directorate of the Registry of Associations confined itself to acknowledging the decision of the General Vigilance and Justice Council of the SNTMMSRM of 16 February 2006. The Government of Mexico reiterates that the General Directorate of the Registry of Associations does not elect, appoint or remove union leaders from office, as it is not empowered to do so. They are elected exclusively by the members of each union, in accordance with the Federal Labour Act and the statutes of the union. The Federal Labour Act clearly establishes that the role of the General Directorate of the Registry of Associations is confined to acknowledging or, in other terms, registering the decisions of unions.
152. (3) The collective rights of the former leaders of the SNTMMSRM are protected, as the Mexican legal system offers the necessary remedies for Napoleón Gómez Urrutia and the other members of the union to have recourse to the competent authorities so as to seek review of decisions by the labour authorities with which they disagree. No channels other than those set out in law are valid to resolve disputes.
153. (4) The lawfulness of the decisions adopted by the General Directorate of the Registry of Associations is based on factual and legal considerations; nevertheless, were the judicial authorities to find the contrary, the executive would not hesitate to comply with and give effect to the decisions made by the courts.
154. 1311. In its communication of 26 February 2007, the Government reiterates its view that the complaint is not receivable. With regard to the communication and summary provided by Napoleón Gómez Urrutia in November 2006, the Government contests the receivability of the communication for the reasons indicated in its previous communication. It adds that Napoleón Gómez Urrutia’s claim is false that his removal from office as Secretary-General, and those of the National Executive Committee and of the General Vigilance and Justice Council, were unlawful. There is therefore no breach of the principle of freedom of association, as indicated below. Nevertheless, with a view to contributing in good faith to the work of the Committee on Freedom of Association, it observes that the communication of the IMF and that of Napoleón Gómez Urrutia, as well as his summary, contain similar arguments. The Government reiterates that the acts relating to the acknowledgement of the new committee of the SNTMMSRM, issued on 17 February 2006, do not constitute an infringement of the principle of freedom of association and the right to organize, as they are derived from an internal conflict within the union which has its origins in the removal from office of Napoleón Gómez Urrutia as Secretary-General and of the rest of the National Executive Committee, as well as the President of the union’s General Vigilance and Justice Council. This was carried out by an internal body of the union, which was empowered to do so under the terms of the statutes, on the basis of a decision of the above Council supported by the majority of its members (two out of three) in which it noted alleged unlawful acts by those union officials to the prejudice of the members of the union. The General Directorate of the Registry of Associations of the STPS confined itself to acknowledging these decisions.
155. 1312. The General Vigilance and Justice Council of the SNTMMSRM, using the powers conferred upon it by the union’s statutes, and on the basis of various complaints and denunciations received since August 2005 from different groups of miners concerning the action of the members of the National Executive Committee, consisting principally of the misappropriation of the amount of US$55 million from a trust set up for the workers of the union, decided to remove them from office and suspend their trade union rights for a period of five years.
156. 1313. In accordance with section 359 of the Federal Labour Act, trade unions have the right to draw up their statutes and rules, to elect their representatives in full freedom, to organize their administration and activities and to formulate their programmes.
157. 1314. With reference to the amparo action filed by Napoleón Gómez Urrutia and other members of the former National Executive Committee of the SNTMMSRM, registered as No. 397/06, against the decision of 17 February 2006 in which the STPS acknowledged the interim executive committee under the leadership of Elías Morales Hernández, the Government indicates that the hearing of the case was held on 6 November 2006. The ruling, which was published in the list of decisions of 4 December 2006, halted the action on the grounds of procedural flaws. Following this finding, Napoleón Gómez Urrutia and other members of the former National Executive Committee of the SNTMMSRM appealed for the decision to be reviewed by a collegiate labour court of the first circuit. It is still to be decided which collegiate court will hear the appeal and rule on the case.
158. 1315. With regard to the amparo action in the Fourth District Labour Court of the Federal District (No. 745/06) filed by Napoleón Gómez Urrutia against the refusal by the STPS to issue the acknowledgement of the decision by the extraordinary general assembly of March 2006 to amend the decision by the General Vigilance and Justice Council, setting the decision aside, so that Napoleón Gómez Urrutia and his National Executive Committee could continue to lead the union (when the documentation for the assembly was submitted, the General Directorate of the Registry of Associations, on 29 March 2006, considered that the convocation for the assembly was not valid and that the necessary quorum had not been achieved), the Government indicates that the hearing has been held by the court and that the ruling is awaited. Among the grounds for finding the appeal unfounded put forward by the STPS, emphasis should be placed on the absence of legal interest and the consent to the impugned act, as the plaintiffs are challenging the decision to refuse acknowledgement of the executive committee, but have requested acknowledgement of a different committee.
159. 1316. A different ordinary general assembly was held from 2 to 13 May 2006, following which acknowledgement was requested from the STPS on 19 May 2006 of the National Executive Committee that had been elected. The latter committee differs from the one elected on 18 and 19 March 2006 in the city of Monclova, Coahuila, at the extraordinary general assembly of the union. Under these conditions, Napoleón Gómez Urrutia and other members of the National Executive Committee of the SNTMMSRM have shown that they no longer have a legal interest in the impugned decision, since the grounds for the refusal no longer exist, as demonstrated by their action in requesting a new acknowledgement (requested on 19 May 2006).
160. 1317. In relation to the ordinary general assembly held in the city of Mexico, Federal District, from 2 to 13 May 2006, the Government observes that, in accordance with the documentation submitted to the General Directorate of the Registry of Associations, the ordinary general assembly was convened on 6 February 2006 by Napoleón Gómez Urrutia himself (that is, before he was removed from office as Secretary-General of the SNTMMSRM). In this connection, the Government indicates that, following examination of the documentation submitted by Napoleón Gómez Urrutia to the General Directorate of the Registry of Associations concerning the ordinary assembly, a decision was taken on 22 August 2006 not to issue the acknowledgement as it was considered that there were various flaws in the holding of the assembly and that the quorum was insufficient for it to be properly constituted. Challenging this decision, Napoleón Gómez Urrutia filed another amparo action, also before the Fourth District Labour Court of the Federal District (No. 1393/06). The case is still being examined.
161. 1318. Turning to the claim by Napoleón Gómez Urrutia that the signature of Juan Luis Zúñiga Velásquez on the decision by the union’s General Vigilance and Justice Council to remove the then Secretary-General of the SNTMMSRM (Napoleón Gómez Urrutia) from office is not authentic, on 22 December 2006 Zúñiga Velásquez filed criminal charges with the Office of the Attorney-General of the Republic (PGR) alleging the falsification of documents and that the signatures on the documents which served as a basis for removing Napoleón Gómez Urrutia and his executive committee from office were not his.
162. 1319. On this matter, it is important to note that on 11 January 2007 an examination was carried out by PGR specialists in photography, the authentification of documents and handwriting, who analysed the signatures of Juan Luis Zúñiga Velásquez on the documents in case No. 10/670-9 on the SNTMMSRM. The STPS provided full support and the necessary facilities for the agents of the federal ministry to carry out the examination. As in all such cases, the findings and outcome of the examination will be accepted.
163. 1320. The Government reiterates its previous conclusions and adds that:
164. – the General Directorate of the Registry of Associations does not elect, appoint or remove from office union leaders, as it is not empowered to do so, but complies with the general principle of law that “authorities only do what they are legally empowered to do”; at no juncture did it intervene in the internal affairs of the SNTMMSRM and it confined itself to discharging its functions and complying with the duties set out in the law;
165. – as may be observed, the collective rights of the former leaders of the SNTMMSRM have been protected, as Napoleón Gómez Urrutia has been able on various occasions to exercise his right to turn to the administrative and judicial authorities to challenge decisions by the authorities which he deemed prejudicial to his legal interests. In practice, Napoleón Gómez Urrutia filed several amparo actions against administrative and judicial decisions that he deemed to be prejudicial to him. These actions have been dealt with in accordance with the Mexican legal system;
166. – the lawfulness of the decisions adopted by the General Directorate of the Registry of Associations is based on factual and legal considerations; nevertheless, were the judicial authorities to find to the contrary, the executive would not hesitate to comply with and give effect to the decisions made by the courts;
167. – the Government reserves the right to make observations on the supplementary information and documents submitted by the IMF concerning case No. 2478, forwarded by the International Labour Standards Department of the ILO on 19 December 2006 and received by the STPS on 13 February 2007.
168. 1321. In its communication of 10 July 2007, the Government replies to the communication of the IMF dated 30 March 2006, sends its comments on the supplementary information and documents provided by the IMF on 16 December 2006 concerning case No. 2478 (note TUR 1-41-12 of 19 December 2006) and on the comments made by the IMF on 28 March 2007 in relation to the observations of the Government of Mexico concerning the receivability of the case by the Committee on Freedom of Association (note TUR 1-41-12 of 4 April 2007).
169. 1322. The Government of Mexico indicates that the revised information and documentation submitted by the IMF to the ILO on 14 December 2006 appears to be closely related to amparo actions Nos 397/2006, 745/2006 and 1393/2006, all filed by Napoleón Gómez Urrutia with the Fourth District Labour Court of the Federal District. The above documents relate to aspects already covered by the Mexican Government in its previous observations.
170. 1323. The content of the IMF’s comments shows that Napoleón Gómez Urrutia and the members of the National Executive Committee over which he presided were able on several occasions to exercise their right to appeal to the administrative and judicial authorities against decisions by the authorities that they deemed prejudicial to their legal interests. Indeed, the decision which gave rise to the alleged violation of trade union rights in Mexico to the prejudice of the SNTMMSRM, and on which the IMF’s communication to the ILO was based, was set aside by the courts.
171. 1324. As the Government of Mexico duly informed the Committee on Freedom of Association, Napoleón Gómez Urrutia and other members of the former National Executive Committee of the SNTMMSRM filed amparo action No. 397/06 with the Fourth District Labour Court of the Federal District against the decision of 17 February 2006 in which the General Directorate of the Registry of Associations of the STPS acknowledged the new National Executive Committee and the President of the General Vigilance and Justice Council, under the leadership of Elías Morales Hernández as Secretary-General instead of Napoleón Gómez Urrutia, in accordance with the decision adopted by the union’s General Vigilance and Justice Council. On 29 November 2006, the Fourth District Labour Court of the Federal District issued a ruling halting the proceedings (it found a legal and material flaw preventing the case from being examined on the merits) in respect of amparo action No. 397/06 as it deemed that Napoleón Gómez Urrutia did not have the right to act or the legal personality to appear before the court.
172. 1325. A final decision was handed down in relation to the amparo action by the Fourth Collegiate Amparo Court of the First Circuit on appeal for review No. RT 64/2007(5) at its session on 26 March 2007. The Collegiate Court amended the ruling handed down by the Fourth District Labour Court, granting amparo and the protection of the federal courts to Napoleón Gómez Urrutia and the other members of the former National Executive Committee of the SNTMMSRM who had filed the appeal. The sixth introductory paragraph of the ruling reads as follows:
173. In view of the above considerations, it is necessary to grant the plaintiffs amparo and the protection of the federal courts against the decision issued by the responsible authority on the seventeenth day of February in the year two thousand and six in relation to file No 10/670-9 registered by the General Directorate, with the effect that the above authority shall set aside this decision and all its effects and reinstate the claimants in the exercise of the constitutional guarantees that were violated, issuing in place of the impugned decision a new decision which, first, re-establishes the validity and effects of the acknowledgements contained in decisions Nos. 211.2.12.3494 of twenty-nine September in the year two thousand and three and 211.2.1.3802 of two August in the year two thousand and four and, second, denies the prejudiced third parties, Juan Luis Zúñiga Velásquez and Juan Pablo Patino Rocha, the applications that they submitted in writing on seventeen February in the year two thousand and six which were issued on that same day and gave rise to the impugned decision, without prejudice to the maintenance of the right of the latter to test their claims as set out in the above document before the jurisdictional authority competent to resolve such issues.
174. 1326. In compliance with the ruling of the Fourth Collegiate Amparo Court of the First Circuit, on 16 April 2007 the General Directorate of the Registry of Associations restored the validity and legal effects of the acknowledgement of the members of the executive committee of the SNTMMSRM, with Napoleón Gómez Urrutia as the Secretary-General. Accordingly, in accordance with the ruling of the Collegiate Court, the General Directorate of the Registry of Associations set aside 11 decisions issued in 2006 at the request of Elías Morales Hernández. These decisions relate principally to requests for acknowledgements by branches of the SNTMMSRM.
175. 1327. In view of the foregoing, it is clear that the decisions that may have prejudiced the SNTMMSRM have been overturned. It is not therefore necessary to analyse and examine the comments sent by the IMF in relation to the interim observations of the Government of Mexico.
176. 1328. In addition, the Government informs the Committee on Freedom of Association that, on 9 March 2007, the Fourth District Labour Court of the Federal District issued a ruling halting amparo action No. 745/06. The action had been filed by Napoleón Gómez Urrutia et al. against the decision of the General Directorate of the Registry of Associations not to issue the acknowledgement of the decisions adopted by the extraordinary general assembly held in the city of Monclova, Coahuila, on 18 and 19 March 2006. The proceedings were stayed as it was deemed that Napoleón Gómez Urrutia did not have the right to act or the legal personality to appear before the court. The Fourth Collegiate Labour Court of the Federal District, in the context of case No. RT 744/2007 (39), found the appeal for review filed by Napoleón Gómez Urrutia against amparo ruling No. 745/06 to be receivable. In a ruling on 17 May 2007, the Collegiate Court confirmed the halting of the action on the grounds that Napoleón Gómez Urrutia had no legal interest or right to act.
177. 1329. In relation to amparo action No. 1393/06 filed by Napoleón Gómez Urrutia against the decision of the General Directorate of the Registry of Associations not to issue the acknowledgement concerning the ordinary general assembly held in the Federal District from 2 to 13 May 2006, the Fourth District Labour Court of the Federal District handed down a ruling on 18 May 2007 in which it ordered the halting of the action on the grounds of the lack of legal interest by the plaintiff as the conditions were met for finding that the action was not receivable, in accordance with section 73(XVII), in conjunction with sections 5(III) and 30(II) of the amparo Act, under the terms of which:
178. Section 73. An action for amparo shall not be receivable: …
179. XVII. When the maintenance of the impugned act cannot have any legal or material effect whatsoever as its purpose or effects no longer exist; …
180. Section 5. The parties to the amparo action are: …
181. III. The third party or parties prejudiced, with the following being able to intervene in this capacity:
182. (a) the counterpart of the prejudiced party where the impugned act is derived from an action or dispute that is not of a legal nature, or any of the parties to that action where amparo is claimed by a person who is not a party to the procedure;
183. (b) the injured party or such persons as, in accordance with the law, are entitled to compensation for the damage or to invoke civil liability arising out of the commission of the offence, as appropriate, in the amparo actions brought against judicial decisions of a penal nature, where they affect such compensation or liability;
184. (c) the person or persons who have applied in their interests for the act in respect of which amparo is sought, in the case of decisions by authorities other than the judicial or labour authorities; or who, without having sought it, have a direct interest in the maintenance of the impugned act. …
185. Section 30. Notwithstanding the provisions of the previous sections, the authority examining the amparo action, the grounds for halting the action or the respective appeals may, where it is deemed appropriate, order that any of the parties be personally notified: in any event, a summons to the injured third party and the first notification that is to be made to a person other than the parties to the action, shall be made on a personal basis.
186. Personal notifications shall be made in accordance with the following rules: …
187. II. Where neither the home address of the plaintiff, nor the address of the residence or office for the purposes of notification, is set out in the documents submitted, the notification shall be made by means of listing. However, where the home address of the injured third party or of a person other than a party to the action is not contained in the documents, nor any address of a home or office for the purposes of notification, the clerk shall so indicate with a view to informing the president of the collegiate court of the corresponding circuit, the court or the authority examining the matter, so that the measures deemed appropriate may be adopted with a view to identifying the home address. If, in spite of the investigation, the home address remains unknown, the first notification shall be published at the cost of the complainant, in accordance with the provisions of the Federal Code of Civil Procedures. …
188. 1330. As the plaintiff did not demonstrate any interest in calling upon the injured third parties to appear before the court, and as the time limits established for publication and accordingly being in a position to call them had elapsed, there was a flaw in the procedure attributable to Napoleón Gómez Urrutia which prevented the judge from examining the case on the merits. On 7 June 2007, the decision became final as no appeal had been filed against it.
189. 1331. The Government draws the following conclusions:
190. (1) The acts described by the IMF in its various communications, supplemented by additional information provided by Napoleón Gómez Urrutia, do not constitute an infringement by the Government of Mexico of the principle of freedom of association and the right to organize set out in ILO Convention No. 87.
191. (2) The events reported by the IMF – consisting of the decision of the General Vigilance and Justice Council of the SNTMMSRM to remove from office the union’s National Executive Committee – are related to an internal union conflict, for which reason the present matter should not be examined by the Committee on Freedom of Association.
192. (3) In the event that the Committee should decide to examine case No. 2478 on the merits, the Government of Mexico reiterates that the General Directorate of the Registry of Associations does not elect, appoint or remove from office union leaders, as it is not empowered to do so. They are elected exclusively by the members of each union, in accordance with the Federal Labour Act and the statutes of the union. The Federal Labour Act clearly establishes that the role of the General Directorate of the Registry of Associations is confined to acknowledging, or in other terms, registering the decisions of unions. The General Directorate of the Registry of Associations accordingly complies with the general principle of law that “authorities only do what they are legally empowered to do”.
193. (4) It further recalls that the collective rights of Napoleón Gómez Urrutia and the members of the National Executive Committee over which he presided have been protected, as on several occasions they have been able to exercise their right to turn to the competent administrative and judicial authorities to challenge decisions by authorities that they deem prejudicial to their legal interests.
194. (5) The executive authorities have no hesitation in complying with and giving effect to court rulings. Accordingly, on 16 April 2007, in accordance with the ruling of the Fourth Collegiate Amparo Court of the First Circuit, the General Directorate of the Registry of Associations reinstated the acknowledgement of the members of the executive committee of the SNTMMSRM, whose Secretary-General is Napoleón Gómez Urrutia, and the legal effects of the acknowledgement.
195. (6) In light of the foregoing, case No. 2478 must be disregarded by the Committee on Freedom of Association as the reason for the complaint, which was the acknowledgement issued by the General Directorate of the Registry of Associations of 16 February 2006, has lapsed.
196. 1332. In its communication dated 2 May 2008, the Government reiterates that Case No. 2478 must be disregarded by the Committee on Freedom of Association as the reason for the complaint has lapsed, in view of the fact that on 16 April 2007 the General Directorate of the Registry of Associations of the STPS reinstated and restored the legal effects of the acknowledgement of the members of the executive committee of the SNTMMSRM, of which the Secretary-General is Napoleón Gómez Urrutia.
197. 1333. With reference to the last communication of the IMF (of 29 January 2008), the Government indicates that it categorically denies and refutes the IMF’s allegations that it has continually attacked the SNTMMSRM through the use of the police forces and the military to break strikes; the violation of the civic rights of members of the union through attacks, intimidation and arbitrary arrest; grave violations of internationally recognized labour rights through deception and manipulation of the facts and the law; and the full complicity of the STPS, which is alleged to have helped Grupo México to establish a “counter-union” to undermine the SNTMMSRM.
198. 1334. The Government expresses concern that allegations of this nature are made so lightly and without being supported by evidence, which discredits the present ILO supervisory procedure. Furthermore, the allegations are not material to the substance of Case No. 2478.
199. 1335. Case No. 2478 is based on the decision by the General Vigilance and Justice Council of the SNTMMSRM to replace the national executive committee of the union, with the decision being acknowledged by the General Directorate of the Registry of Associations of the STPS by means of the acknowledgement of 16 April 2006, based on the information provided by the General Council. The latter information was received by the Secretariat of Labour in accordance with the principles of due process and good faith set out in section 13 of the Federal Act on administrative procedures, although the above authority cannot prejudge the authenticity or veracity of the internal decisions of trade unions.
200. 1336. The Government observes that the communication sent by the IMF to the ILO in which it submits documents that it considers to be additional evidence in Case No. 2478 addresses aspects that are not related to the issues that gave rise to the case. Most of the events occurred after 16 April 2007, the date of the reinstatement and restoration of the legal effects of the acknowledgement of the members of the executive committee of the SNTMMSRM, of which the Secretary-General is Napoleón Gómez Urrutia. The Government adds that the General Directorate of the Registry of Associations of the STPS is prevented from modifying the acknowledgement at its own initiative, although the acts of administrative authorities are valid until a ruling is issued by the courts striking them down, in accordance with section 8 of the Federal Act on administrative procedures.
201. 1337. The Government enumerates the annexes and documents submitted by the IMF in support of its allegations of 29 January 2008 and observes that they do not contain new evidence or allegations relating to Case No. 2478, for which reason they must be disregarded. Nevertheless, with a view to contributing in good faith to the work of the ILO Committee on Freedom of Association, the Government provides the following information.
202. 1338. With regard to the events at the mine in La Caridad de Nacozari, Sonora, on 11 August 2007, the Government indicates that on 11 August 2007 there was a confrontation between 50 former miners and 200 members of chapter 207 of the SNTMMSRM in relation to the dispute concerning the trade union representation of the enterprise Mexicana de Cobre, owned by the Grupo México, during which sadly the death occurred of Reynaldo Hernández González, former worker at the La Caridad mine.
203. 1339. The Office of the Attorney-General of the State of Sonora reported that the Joint Agency of the Public Prosecutor, located in Cumpas, Sonora, the jurisdiction of which includes the municipality of Nacozari de García, initiated preliminary investigation No. 208/2007 into the person or persons responsible for the criminal manslaughter of Reynaldo Hernández González.
204. 1340. The Joint Agency of the Public Prosecutor, located in Cumpas, Sonora, undertook several visual inspections of the scene of the events, and of various vehicles which were abandoned and seized at the scene of the events.
205. 1341. Several statements were taken from which it is concluded that a group of former workers were endeavouring to prevent access to the mine as a means of exerting pressure for their reinstatement. Furthermore, the statements showed that on the day of the events the group of former workers were intending to take over the mine installations, for which purpose they were in possession of sticks and stones to take over the entry lodges giving access to the installations, when they were surprised by a group of workers who were leaving the mine and blocked their passage, at which time the two groups engaged in violent confrontation. With a view to avoiding the confrontation, the former workers proceeded towards the foundry area, where they were once again caught, with a further confrontation ensuing. However, they continued until they came alongside the airport, where a considerable number of miners were blocking their way. It was here that there was a third confrontation and where it is deduced that the injuries were sustained which resulted in Reynaldo Hernández González losing his life.
206. 1342. The Joint Agency of the Public Prosecutor, located in Cumpas, Sonora, is continuing to take statements from several persons who were present at the events of 11 August 2007, and has also issued several requests for information to clarify the facts. Preliminary investigation No. 208/2007 is accordingly being pursued.
207. 1343. Contrary to the allegations contained in the IMF’s communication, the Office of the Attorney-General of the State of Sonora maintains that no miner was mortally wounded by being shot in the head. There is no witness or member of the family of Reynaldo Hernández González who claims that he was killed by a projectile from a firearm. The formal truth concerning the death of Hernández González, in accordance with the legal findings of the autopsy conducted on 12 August 2007, was that the cause of death was: “laceration and cerebral haemorrhage resulting from cranial-encephalic traumatism producing an elliptical fracture of the parietal bone with the introduction of bone fragments into the left cerebral parietal lobe caused by an object with blunt edges”. This finding was verified by the personnel of the National Human Rights Commission, who attended by invitation of the Governor of the State of Sonora.
208. 1344. With reference to the alleged attacks on 20 workers, according to preliminary investigation No. 208/2007 by the Agency of the Public Prosecutor located in Cumpas, Sonora, seven persons were detained on the scene of the events and appeared before the competent agent of the Public Prosecutor. Personnel of the National Human Rights Commission interviewed each of the seven persons, none of whom complained of any type of physical or psychological ill-treatment. Furthermore, the seven statements made to the Public Prosecutor in the presence of counsel for the defence are contained in the file on the investigation, but no reference is made to ill-treatment or torture. The file on the investigation also contains seven medical certifications for the same seven persons, accompanied by seven corroborating investigations by the Office of the Public Prosecutor. It should be noted that these persons were detained in accordance with the terms and conditions established by the applicable legal provisions.
209. 1345. In relation to the claim by the family of Reynaldo Hernández González that they were denied access to his body for five days without any explanation by the authorities, the file on the investigation contains a report on the identification and delivery of the body to Nancy Jesús Hernández García and Mirna Hernández García, daughters of the deceased. The body was handed over two days after the events which resulted in the death of Hernández González, although it should be noted that during those two days the following action and investigations were undertaken by the Office of the Public Prosecutor: the autopsy investigation to determine the cause of death (to carry out the autopsy and issue the respective findings it was necessary to transfer the body to the city of Hermosillo, Sonora), toxicological tests, a sodium radizonate test and certification by the authorities.
210. 1346. With regard to the election of a union to represent the workers in eight units of Grupo México, the Government indicates that on 29 June 2007 the Federal Conciliation and Arbitration Board received from the National Union of Mine Exploration, Exploitation and Production Workers of the Republic of Mexico (SNTEEBMRM), of which the Secretary-General is Rupertino García Reyes, a request for the registration of the collective agreement in eight enterprises of Grupo Minera México, located in Chihuahua, Sonora, Coahuila and San Luis Potosí.
211. 1347. In accordance with the respective legal procedures, the Federal Conciliation and Arbitration Board on 5 September 2007 issued the certification of the ballot in which the workers in each of the eight work centres of Grupo Minera México (Unidad Santa Bárbara, in Chihuahua; Planta Nueva Rosita, in Coahuila; Beneficiadora de Concentrados, Unidad La Caridad and Planta de Cal, in Sonora, and in the Planta San Luis, Refinería Electrolítica de Zinc and Unidad Charcas in San Luis Potosí) freely and transparently cast their votes to choose the union to which they wished to belong. It should be noted that these ballots were held simultaneously in four federated entities, in the presence of the public certifying officers of the Federal Conciliation and Arbitration Board and also in the presence of federal labour inspectors, as well as representatives of each of the unions and enterprises.
212. 1348. The results of the ballots were as follows:
213. Ballot No.
214. Enterprise
215. Total votes
216. For the SNTEEBMRM
217. For the complainant mining union
218. IV-219/2007
219. Minerales Metálicos del Norte, SA
220. de CV Unidad Santa Bárbara
221. 764
222. 764
223. 0
224. IV-220/2007
225. Mexicana de Cobre, SA de CV Beneficiadora de Concentrados
226. 786
227. 780
228. 6
229. IV-221/2007
230. Industrial Minera México, SA
231. de CV Planta Nueva Rosita
232. 235
233. 185
234. 50
235. IV-222/2007
236. Industrial Minera México, SA
237. de CV Planta San Luis
238. 243
239. 243
240. 0
241. IV-223/2007
242. Mexicana de Cobre, SA de CV
243. Planta de Cal
244. 16
245. 16
246. 0
247. IV-224/2007
248. Industrial Minera México, SA de CV Refinería Electrolítica de Zinc
249. 434
250. 386
251. 48
252. IV-225/2007
253. Mexicana de Cobre, SA de CV
254. Unidad La Caridad
255. 658
256. 655
257. 3
258. IV-226/2007
259. Industrial Minera México, SA
260. de CV Unidad Charcas
261. 729
262. 687
263. 42
264. Total
265. 3 865
266. 3 716
267. 149
268. 1349. Notwithstanding the outcome of the ballots, in which the SNTEEBMRM obtained over 96 per cent of the final votes cast in all work centres, and in order to comply with the right of the parties to be heard, the Federal Conciliation and Arbitration Board ordered the holding of hearings for the submission of evidence relating to the objections raised by the unions to the ballots.
269. 1350. On 15 October 2007, the Federal Conciliation and Arbitration Board notified the parties of its findings, in which it declared the SNTEEBMRM to be the new accredited party to the collective labour agreements in eight enterprises of the Grupo Minera México, in place of the SNTMMSRM, which was accordingly replaced as the accredited trade union in those work centres (Bulletins Nos 057 and 071 of the STPS, dated 5 September and 15 October 2007, are attached as Annexes 2 and 3, respectively).
270. 1351. The SNTMMSRM lodged direct amparo actions against the decisions of the Federal Conciliation and Arbitration Board, which are currently before the competent jurisdictions.
271. 1352. With reference to the strike in the Cananea mine, the Government indicates that on 30 July 2007 the SNTMMSRM called a strike in the Cananea mine in Sonora on the grounds of inadequate occupational safety and health conditions. The enterprise exercised its right to request the Federal Conciliation and Arbitration Board to examine the reasons for the calling of the strike and, as appropriate, to declare it unlawful. The Board requested the union to provide clarifications on the occupational safety and health violations which had led to the calling of the strike.
272. 1353. After complying in full with the procedures set out in the Federal Labour Act, the Federal Conciliation and Arbitration Board decided to declare the strike unlawful. It found that the reasons put forward by Grupo Minera México for declaring the strike unlawful were valid as the mining union had not complied with article 174 of its statutes and declaration of principles, which provides that a strike has to be approved by an extraordinary general assembly convened for that purpose.
273. 1354. The Federal Conciliation and Arbitration Board found that the mining union had failed to comply with this requirement, as it had omitted to attach the record of the above assembly to the claims made when issuing the strike notice, and that it had also failed to attached copies or records of the convocation indicating the date on which the extraordinary general assembly would be held. Accordingly, the union failed to submit in full and at the appropriate time these essential elements as proof of the lawful nature of the strike action.
274. 1355. On 11 January 2008, the Federal Conciliation and Arbitration Board notified the SNTMMSRM that the strike called by the union at the Cananea mine on 30 July 2007 had been declared unlawful.
275. 1356. The Federal Conciliation and Arbitration Board reached this decision in strict compliance with the measures ordered by the First Collegiate Labour Court of the First Circuit which, on 21 December 2007, set aside the first decision issued by the Federal Board on the present case and ordered it to reach another decision.
276. 1357. The decision of the Federal Conciliation and Arbitration Board was issued on the grounds of failure to meet the requirements set out in the law, based on evidence that included notarial acts submitted by both the SNTMMSRM and by the enterprise certifying that the strike did not begin at the time previously indicated by the union in the strike notice, and that this constituted failure to meet a formal requirement to this effect in conformity with the Federal Labour Act.
277. 1358. Under the terms of section 932(I) of the Federal Labour Act, the workers were under the obligation to return to work within a period of no longer than 24 hours and in the case of those who fail to do so the enterprise may terminate their employment relationship without incurring any liability.
278. 1359. With a view to ensuring the right to work, as set out in both the Political Constitution of the United States of Mexico and the Federal Labour Act, the Federal Conciliation and Arbitration Board requested the assistance of the federal forces of order and those of the State of Sonora to ensure that the workers were provided with the necessary guarantees so that they could with absolute freedom return to work in the Cananea mine (Bulletin No. 002 of the STPS, dated 11 January 2008, is attached as Annex 4).
279. 1360. The Government categorically denies the allegation in the IMF’s communication that 700 members of the armed forces of the army and the federal security forces were called to expel the strikers from the entrances to the mines and rebuts the allegation that the police and soldiers fired rubber bullets and tear gas against the workers. On the contrary, the presence of the security forces was fully justified to guarantee the full exercise of the right to work, the right of association and freedom of movement, as set out in the Political Constitution of the United States of Mexico, and to prevent potential confrontations and, where necessary, contain acts of provocation.
280. 1361. The SNTMMSRM lodged an amparo action against the above decision of the Federal Conciliation and Arbitration Board with the Sixth District Labour Court of the Federal District.
281. 1362. On 12 January 2008, the Federal Conciliation and Arbitration Board was notified of the interim suspension order issued by Sixth District Labour Court of the Federal District to the SNTMMSRM against the decision of the Federal Board. In its operative part, the interim suspension was granted:
282. … for the purpose of preventing the employment contracts of strikers from being considered to be terminated when they continue to maintain the strike; but leaving open the possibility for negotiation where the strike was called, of a return to work by non-striking workers and by strikers who voluntarily wish to return to work; all while the merits are determined of the amparo action lodged against the decision to declare the strike unlawful and, until a final decision is reached on its suspension ….
283. 1363. On the basis of this court ruling, the Cananea mine could keep its doors open for any worker who decided to return to work, and the possibility was retained of maintaining its normal production until it was decided to the contrary by the courts, either when deciding on the definitive suspension of the impugned decision, or ruling on the substance of the amparo action lodged against the decision by the Federal Conciliation and Arbitration Board to declare the strike unlawful (Bulletin No. 003 of the STPS, dated 12 January 2008, is attached as Annex 5).
284. 1364. On 21 January 2008, the Sixth District Labour Court of the Federal District granted the definitive suspension of the decision in the amparo action lodged by the SNTMMSRM. The operative part of the ruling reads as follows:
285. The definitive suspension of the impugned decision is granted for the purpose of preventing the termination of the employment contracts of the strikers who are continuing to maintain the strike; but leaving open the possibility for negotiation where the strike was called, of a return to work by non-striking workers and by strikers who voluntarily wish to return to work; all while the substance is being determined of the amparo action lodged against the decision to declare the strike unlawful, in consideration that the normal operation of the employer must be allowed.
286. 1365. By this court ruling, it was confirmed that the Cananea mine could continue its normal operations, as it was allowed to continue operating with any worker who so decided. At the same time, it prevented the enterprise from terminating the employment contracts of striking workers who did not return to work, and the declaration that the strike was unlawful by the Federal Conciliation and Arbitration Board is maintained until the amparo action is resolved on the merits.
287. 1366. At that juncture, the STPS called for full effect to be given to the rulings of the judicial authorities of the federation by all the parties to the matter. In this respect, the STPS:
288. – demanded that the enterprise Mexicana de Cananea SA de CV undertook the necessary work to guarantee optimal safety and health conditions in the mine;
289. – invited miners in Cananea to decide in absolute freedom and in accordance with their consciences whether to return to work, on condition that they were guaranteed the safety measures to do so; and
290. – urged the leadership of the mining union not to place personal interests and factors unrelated to work before the interests of the majority of the workers (Bulletin No. 007 of the STPS, dated 21 January 2008, is attached as Annex 6).
291. 1367. In parallel with the judicial proceedings, with a view to addressing the problem arising out of the obstruction measures by the members of the SNTMMSRM to prevent contracted third parties from entering the Cananea mine, and in order to prevent the issue from escalating, the Secretary of Labour and Social Insurance, Javier Lozano Alarcón, called the representatives of the union, the enterprise Mexicana de Cananea SA de CV and the authorities of the State Government of Sonora and the municipality of Cananea to separate meetings, which were held on 3 April 2008.
292. 1368. The problem was that the enterprise had hired third parties to carry out work in the Cananea mine, without complying with clause 353 of the collective labour agreement which, in its operative part, establishes the prior requirement for the enterprise to request in writing the conclusion of an agreement with the union to the effect that the contracted enterprises may undertake such work as is not performed by unionized employees. This was unrelated to the notifications issued by the enterprise to the union concerning work which does not correspond to the normal operation of the plant.
293. 1369. In view of the above, the STPS considered that, in accordance with the definitive suspension granted by the Sixth District Labour Court of the Federal District, the SNTMMSRM should not prevent the entry of striking workers or non-strikers who voluntarily wished to return to work. At the same time, it considered that until a final ruling was handed down on the amparo action, which would determine whether or not the strike at the Cananea mine was lawful, or an agreement was concluded on this subject, it was appropriate for the enterprise to refrain from hiring third parties for work which corresponded to the operations normally performed by unionized employees. It should be noted that this position was supported by the representatives of the State and municipal authorities present at the meetings (Bulletin No. 047 of the STPS, dated 3 April 2008, is attached as Annex 7).
294. 1370. Finally, the Government indicates that on 28 April 2008, the Federal Conciliation and Arbitration Board found that the strike in the Cananea mine was legal. The ruling was issued in compliance with measures ordered by the First Collegiate Labour Court of the First Circuit, which had recently confirmed the amparo granted by the Sixth District Labour Court of the Federal District to the SNTMMSRM, which considered that the strike should be declared lawful.
295. 1371. The Government adds that partial operations had been continued in the mine by workers who had so decided in accordance with the definitive suspension granted by the Sixth District Labour Court of the Federal District in the amparo action that was under review. As from the notification of this new decision by the Federal Conciliation and Arbitration Board, there will be no operations in the mine as the strike was declared legal, until the parties reach agreement to end the work stoppage.
296. 1372. The above shows that the SNTMMSRM had access to the legal relief and remedies envisaged by the Mexican legal system, which it exercised in due time and in appropriate form before the competent administrative and judicial authorities (Bulletin No. 052 of the STPS, of 3 April 2008, is attached as Annex 8).
297. 1373. In addition, the Committee on Freedom of Association is informed that, irrespective of the strike that is continuing, the STPS has remained attentive to the measures that are being undertaken to reinforce the safety and health conditions in the installations of the Cananea mine. This is illustrated by the fact that, as a result of the conciliatory discussions held between 7 and 9 March 2008, the personnel of the General Directorate of the Federal Labour Inspectorate of the STPS carried out an extraordinary safety and health inspection, with the participation of the members of the safety and health committee, the employer representative and members of the SNTMMSRM. During the inspection, several violations were detected and a total of 261 technical safety and health measures were ordered, of which the enterprise has given effect to 209, while none of the 52 remaining measures are considered sufficiently serious to prevent work in the mine.
298. 1374. In the hypothesis that work returns to normal in the mine, the STPS will carry out another extraordinary inspection to verify full compliance with the applicable standards.
299. 1375. Through the STPS, the Government is leaving the door open for dialogue and conciliation between the union and the enterprise with a view to achieving worthwhile and permanent labour peace between the parties, although it does not and will not accept undue pressure or blackmail to resolve matters that are unrelated to labour issues.
300. 1376. The Government reiterates the conclusions set out in its previous communications and indicates that the IMF’s communication, in which it submitted documents that it considers to be additional evidence in Case No. 2478, do not constitute new allegations that have to be taken into account in the examination of the case by the Committee on Freedom of Association, as explained and demonstrated by the Government of Mexico in the comments referred to above. The communication should therefore be disregarded.
301. 1377. The Government indicates that it regrets and condemns the death of Reynaldo Hernández González on 11 August 2007. In view of the nature of the circumstances, the local authorities in the State of Sonora will investigate and, where appropriate, impose the necessary punishment for Mr Hernández’s death and the offences which may arise concerning the mine’s installations. Notwithstanding the above, it is not for the Committee on Freedom of Association to take a position on this regrettable incident until the competent national authority has determined whether it is related to the effective application of the general principles of freedom of association, which are within the mandate of the Committee. Moreover, examination by the Committee could prejudice the outcome of these procedures.
302. 1378. The Government adds that it has at all times complied with the rulings of the courts relating to the strike notice in the Cananea mine and remains attentive concerning the measures that are being taken to improve the safety and health conditions of the mine’s installations.
303. 1379. In a communication dated 14 May 2008, the Government indicates that the General Directorate of the Registry of Associations cannot interfere with the internal will of the trade unions themselves, since its activities are guided by the principle of legal certainty and good faith; for this reason, it is confined to taking note of their decisions and cannot revoke their acts as this would constitute interference with the right of workers to elect their own representatives. In this respect, article 370 of the Federal Labour Code provides the following:
304. Article 370 – Trade unions are not liable to be dissolved, suspended or to have their registration cancelled by administrative act.
305. Similarly, Articles 3 and 4 of Convention No. 87 on freedom of association and protection of the right to organise provide that:
306. Article 3
307. 1. Workers’ and employers’ organisations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organize their administration and activities and to formulate their programmes.
308. 2. The public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof.
309. Article 4
310. Workers’ and employers’ organisations shall not be liable to be dissolved or suspended by administrative authority.
311. 1380. The Government adds that the Committee on Freedom of Association itself has indicated that “the cancellation of registration of an organization by the registrar of trade unions is tantamount to the suspension or dissolution of that organization by administrative authority and that such measures constitute serious infringements of the principles of freedom of association”. As a result, the national courts which are entrusted with interpreting the application of legal norms in Mexico have decided that the registration which is granted to a trade union on the basis of its establishment and the registration granted to its executive committee following elections, or modifications based on the statutes of the organization, are procedures which are treated in a similar manner, note being taken of them, and are after all considered as analogous. For this reason, if the General Directorate of the Registry of Associations had set aside the acknowledgement of 17 February 2006 without the intervention of the judiciary, this would have constituted a cancellation by administrative act which would fragrantly violate the provisions mentioned above, as well as freedom of association principles.
312. 1381. These facts coincide with other decisions of the Committee on Freedom of Association itself, namely, that cancellation of a trade union’s registration should only be possible through judicial channels and legislation which accords the minister the complete discretionary power to order the cancellation of the registration of a trade union, without any right of appeal to the courts, is contrary to the principles of freedom of association.
313. 1382. Since the acknowledgement is considered under the national legal system as an administrative act, it can only be declared null and void by the judicial authority according to article 8 of the Federal Act on Administrative Procedures; this is what happened in this specific case, the competent tribunal having nullified the acknowledgement of 17 February 2006, as previously indicated to the Committee. In this regard, the abovementioned article provides the following:
314. Article 8
315. The administrative act will be valid as long as its nullity has not been declared by an administrative or judicial authority. Article 17 of the Political Constitution of the United States of Mexico guarantees that justice will be impartial and the authorities which carry out judicial functions are under an obligation to observe this guarantee.
316. Article 17
317. No one will take justice in his own hands or resort to violence to claim his rights. Everyone has the right to obtain justice in the courts which will be expeditious within the framework and limits set by the laws, and hand down decisions in a prompt, impartial and complete manner. The administration of justice shall be free of charge and, therefore, legal costs shall be prohibited …
318. 1383. In this respect, one of the characteristics of the guarantee of the administration of justice is promptness on the basis of the limits and deadlines established to this effect by law and not on the basis of the time it takes since a judicial action is lodged until the competent authority issues a resolution, as within these proceedings, the parties could have recourse to various appeals and instances which form part of the proceedings, so that, as a result, the judge takes more time to hand down a final decision. Thus, the time which elapsed between the date on which the General Directorate of the Registry of Associations ordered the registration of the acknowledgement and the date when it rendered it invalid as a result of the implementation of the decision handed down by the tribunal, does not constitute in any case a malicious delay in justice but rather the time corresponding to the deadlines set by the law and which are necessary for the settlement of the proceedings instituted by the parties.
319. 1384. Despite the above, the Government carried out through the STPS various activities to favour dialogue between the SNTMMSRM and the Minera Grupo Mexico enterprise, among which the following stand out: various formal meetings between the enterprise and the miners’ union at the conciliation unit of the STPS and various high-level meetings held with the representatives of both parties. Some of these took place on 3, 20, 21 and 24 August; 5 November and 6 December 2007. Moreover, other meetings were carried out with the participation of the Secretary of Labour and Social Insurance. In particular, during the meeting of 20 August 2007, the STPS set out a plan of negotiations which contained the main issues requiring an agreed solution between the parties.
320. 1385. In the abovementioned meetings, the SNTMMSRM insisted that a condition for the resolution of the disputes with the enterprise was the final settlement of the labour and economic claims against its Secretary-General; many requests among these have nothing to do with supposed trade union issues and the claims of the trade union exceed by far the supposed contractual violations in the area of occupational safety and health which gave rise to the escalation of the strikes: withdrawal from penal proceedings, higher compensation to the families of the victims of the accident in Pasta de Conchos, and the recovery of bodies, withdrawal of the request for certification as the bargaining agent which was granted to the other trade union and had already been processed successfully more than a month ago; and the payment of many millions of moral damages to the miners’ union and Napoleón Gómez Urrutia.
321. 1386. Later on, on 14 December 2007, the head of the STPS sent a new official letter both to the Secretary-General of the miners’ union and the President of the Grupo México enterprise, asking them to nominate a representative with full powers in order to have another try at conciliation.
322. 1387. Both the enterprise and the SNTMMSRM nominated their representatives with whom two meetings took place. During these meetings, the enterprise expressed its willingness to look for a legal way out on condition that the miners’ union will stop interfering with the mining unit of Cananea. The position of the union was once again to place the issue of the penal status of its Secretary-General before any industrial issue, requesting in particular that:
323. 1. Grupo México take on the charges which could be imputed on the trade union and Napoleón Gómez Urrutia as a result of the economic claims brought to the courts by various workers and the claims which could be brought in the future by other workers, so that Grupo México would undertake to leave the union in peace and unharmed.
324. 2. Grupo México would also undertake the obligation to pay the union and Napoleón Gómez Urrutia the damages caused by the claims lodged by these workers.
325. 1388. During 2008 after various meetings held between the head of the STPS and members of the National Executive Committee of SNTMMSRM with their lawyers, in order to establish an agenda on the problems which led to the complaint, a first meeting was held on 10 March with representatives of the enterprise miners union, in order to find a solution to the problem of the strike movements in the mining units. Moreover, on 19 March a second meeting took place. It should be noted that it was the first time in practically two years that representatives of the miners union met with the President of Minera México SA. During this round of negotiations the issues discussed related, among other things, to occupational safety and health and the check-off of trade union fees. In this context, the Government of Mexico, in conformity with its observations in this communication, made it clear that it has acted and will continue to act in strict observance of the legal framework and in full respect of the findings of the judicial authority, so as to privilege the spirit of conciliation and legality and to respect trade union autonomy and freedom of association.

C. The Committee’s conclusions

• Removal from office of the executive committee
• of the complainant union
  1389. 1389 The Committee notes that the complainant organizations allege the violation of Convention No. 87 by the General Directorate of the Registry of Associations of the STPS through the irregular and unlawful “acknowledgement” and registration of an alleged decision – which in their view is unlawful and in breach of the statutes – by the General Vigilance and Justice Council of the complainant union to remove from office the executive committee presided over by Napoleón Gómez Urrutia and to replace it on an interim basis (until the next general assembly of the union) by another executive committee presided over by Elías Morales Hernández. In the view of the complainant organizations, these acts, together with others indicated in other allegations, are related to the complicity between the labour authorities and Grupo México and the political persecution of the union by the authorities in view of the union’s action to oppose legal and fiscal reforms that are contrary to workers’ rights and to press for wage increases. According to the unions, the authorities committed various unlawful acts through their failure to undertake an appropriate examination of the circumstances before issuing the acknowledgement of the provisional executive committee (which, according to the complainants, was issued on the same day that it was submitted to the Vigilance Council, even though acknowledgement processes take months) and its subsequent failure to identify the consequences deriving from acts related to the flaws in the alleged decision by the union’s General Vigilance and Justice Council. Among other flaws, the complainant organizations indicate that the labour authorities failed to discover that the imposed Secretary-General and other officials were not active members of the union, nor the absence of participation by the plenary of the National Executive Committee in the removal from office of the Secretary-General (the complaint indicates that the General Vigilance and Justice Council did not hear the executive committee that it removed from office, and that this was not taken into account by the labour authorities, thereby violating its right of defence). Moreover, Elías Morales Hernández, the new Secretary-General had been expelled from the union in May 2002, and the labour authorities were unaware that one of the two signatories of the decision removing the National Executive Committee from office certified before a notary that he had not signed the document and an expert examination of the handwriting found that the signature was false. A further signature was fake, as certified to a public notary. The complainant organizations denounce the negative attitude of the authorities towards the two general assemblies, one ordinary and the other extraordinary, which in March and May 2006 came out in favour of the return of the executive committee that had been removed and, in particular, deny that the quorum was not achieved, referring in this respect to a union census from the year 2000 which was outdated. Finally, according to the complainants, the allegation of the misappropriation of the union’s trust fund of US$5 million, which was alleged to be at the origin of the removal from office of the executive committee by the General Vigilance and Justice Council, was based on false documents. There was also the failure to disclose a report by the National Banking and Currency Commission which confirmed that the union leader Napoleón Gómez Urrutia had not committed the offence of money laundering in relation to the trust fund of US$55 million and an investigation is being carried out of the former Federal Prosecutor of Mexico and the Deputy Prosecutor-General for the alleged failure to disclose the report. According to the complainants, an independent hearing exonerated Napoleón Gómez Urrutia of all charges of theft and misappropriation. The complainants emphasize the enormous damage caused by the acts of the authorities, including prejudice to society, particularly considering that, according to the complainant, the events described in the complaint resulted in the stoppage of work on 1 March 2006 by over 270,000 workers in the 130 branches of the complainant union to demonstrate their repudiation of the interim Secretary-General, who had been imposed unlawfully.
  1390. 1390 The Committee notes the Government’s statements challenging the receivability of the complaint as, in its view, it relates to an internal union conflict consisting of the decision by the General Vigilance and Justice Council, which was within its competence, to remove from office the National Executive Committee based on the alleged misappropriation of US$55 million from a trust set up in favour of the workers of the union. The Government explains that it did not elect, appoint or remove from office trade union leaders, but confined itself to issuing acknowledgements, or in other words registering the decisions of the union’s General Vigilance and Justice Council without interfering in the internal affairs of the union. The Committee notes that according to the Government the General Directorate of the Registry of Associations is prevented from modifying or revoking the acknowledgement at its own initiative since in accordance with the law the acts of administrative authorities remain valid until such time as they are set aside by court order. According to the Government, if the General Directorate had set aside the acknowledgement of 17 February 2006 without the intervention of the judiciary, this would have constituted a cancellation by administrative act which would be contrary to Convention No. 87; under the principles of respect for the rule of law and good faith established in article 13 of the Federal Law on Administrative Procedure, this authority cannot prejudge the authenticity or veracity of the internal decisions of trade unions. The Government adds that the Mexican legal system offers the necessary judicial remedies to review decisions by the labour authorities which do not meet with agreement (remedies which have been used in the present case), and that the decisions of the labour authority were adopted on the basis of factual and legal elements and were therefore lawful. The Committee takes due note of the Government’s statement concerning the duty of the General Vigilance and Justice Council to take immediate action in the event of grave faults by union officials (sections 58(III) and 275 of the statutes) and the duty of the authorities of the SL to ensure that the applications that are submitted to them are in compliance with all the requirements set out in the provisions that are in force. The Committee observes that the Government has not referred to the various flaws described by the complainant organization, with the exception of the alleged forgery of the signature of a member of the General Vigilance and Justice Council, in relation to which it indicates that the injured party initiated penal action. The Committee requests the Government to send its observations in this regard.
  1391. 1391 In the view of the Committee, there may have been an element of internal union affairs in the removal from office of the National Executive Committee of the union since, as indicated by the Government, the removal from office occurred following complaints by groups of workers and such denunciations are resolved by a body envisaged in the union’s statutes for that type of complaint. Nevertheless, the complaint must be found receivable as the complainant organization has described a series of flaws relating to the exercise of the right of defence by the executive committee that was removed from office and the lawful operation of the union’s General Vigilance and Justice Council (forged signatures, the appointment as Secretary-General of a person who had not been a member of the union since 2000, etc.), which as a minimum should have resulted in the administration conducting an exhaustive investigation to clarify the facts, particularly in view of the fact that, as the Government indicates, one of the members of the General Vigilance and Justice Council filed penal charges with the Attorney-General of the Republic for the alleged falsification of documents.
  1392. 1392 The Committee notes the new information provided by the Government, in particular to the effect that the final judicial decision which ordered the annulment of the acknowledgement of the new executive committee and considers in the light of the new information provided by the Government, that the acknowledgement or registration of the new executive committee by the authorities amounts to conduct that is not compatible with Article 3 of Convention No. 87, which establishes the right of workers to elect their leaders in full freedom. The Committee notes in this regard that, according to the Government, the judicial authorities in the second instance on 26 March 2007 granted amparo to the executive committee and ordered the (labour) authorities to set aside the decision of 17 February 2006 (removing the executive committee from office), and that this order was given effect by the authorities. While it takes note of the Government’s statement according to which the time which elapsed does not constitute a malicious delay in the administration of justice but that it is the time which corresponds to the deadlines set by law when the parties have recourse to appeals and instances, the Committee is bound to deplore the excessive length of the judicial procedures relating to this case and the grave prejudice that this has caused to the complainant union. The Committee requests the Government to examine measures with the social partners – legal or other reforms – to guarantee expeditious justice in relation to the exercise of trade union rights.
  1393. 1393 The Committee requests the Government to keep it informed of the outcome of the criminal action for the falsification of documents brought by one of the members of the union’s General Vigilance and Justice Council.
  1394. 1394 With regard to the refusal by the labour authorities to accede to the requests of the extraordinary and ordinary congresses (assemblies) of March and May 2006 in relation to the return of the executive committee that had been removed from office, presided over by Napoleón Gómez Urrutia, the Committee notes that, according to the Government, the respective actions were halted by the courts in May 2007 on the grounds that Napoleón Gómez Urrutia had no right to act or legal personality to appear before the court, and the absence of legal interest. The Committee does not have copies of these rulings. Nevertheless, taking into account the contradictions between the complainants’ version and that of the Government on whether or not the statutory quorum was met for these assemblies to be validly constituted, and as these matters are no longer timely, the Committee considers that it is not necessary to pursue its examination of the allegations relating to the assemblies.
• Allegations relating to other measures against the Secretary-General of the complainant union, other members of the Union’s executive committee and
• the union’s headquarters
  1395. 1395 The Committee notes with concern that the Government has not replied in the context of the present case to other grave allegations made by the complainants. The Committee therefore urges it to reply without delay to the allegations concerning:
• – the illegal freezing of the bank accounts of the union, of Napoleón Gómez Urrutia and other union leaders;
• – the maintenance of charges against the Secretary-General of the union, Napoleón Gómez Urrutia, for the misappropriation of the union’s trust fund of US$55 million on the basis of false documentation and the manipulation of the legal system;
• – the armed assault on the main offices of the complainant union by Elías Morales and armed accomplices, including the ransacking, theft and destruction of confidential information; four of the attackers are alleged to have been arrested, but then released two hours later;
• – the pressure exerted on the Governor of the State of Coahuila, where the Pasta de Conchos mine is located, to implicate Napoleón Gómez Urrutia in the Pasta de Conchos mine tragedy, in which 65 miners were buried in an explosion as safety and health standards had been disregarded in the mine;
• – the arrest warrants issued against the union leader, Napoleón Gómez Urrutia, based on the failure of the authorities to disclose reports and despite the fact that an independent hearing had exonerated him of all charges in relation to the US$55 million fund referred to above (the criminal charges have been withdrawn by four federal judges, but remain pending in Sonora and San Luis Potosí).
  1396. 1396 The Committee recalls that the freezing of union bank accounts without adequate judicial review and expeditious appeal constitutes serious interference by the authorities in trade union activities, and that where the bank accounts of trade union leaders accused of embezzlement of trade union funds are frozen, the Committee has pointed out that if, following investigation, no evidence of misappropriation of trade union funds has been found, it would be unreasonable for the accounts of the trade unionists, whether or not they have remained in the country, to remain frozen [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 493]. In view of the long period that has elapsed since the arrest warrants were issued and the fact that the investigation is still continuing, in at least two jurisdictions, into matters related to the trust fund of US$55 million, the Committee emphasizes that justice delayed is justice denied and urges for a rapid conclusion of the judicial procedures.
• Allegations concerning the death of a worker,
• the capture and torture of 20 members of the
• complainant union, the establishment of a
• parallel union and the declaration that the
• strike in the Cananea mine was unlawful
  1397. 1397 Firstly, the Committee wishes to indicate that it considers the IMF’s communication dated 29 January 2008 (new allegations) to be fully receivable as it also contains serious allegations of violations of freedom of association in the mining sector, submitted by one of the complainant organizations.
  1398. 1398 With regard to the death of Reynaldo Hernández González on 11 August 2007, a former worker in the La Caridad mine, the Committee notes the Government’s statement that it regrets and condemns the death and to the effect that: (1) there was a confrontation between 50 former miners and 200 members of chapter 207 of the SNTMMSRM in relation to the dispute concerning the trade union representation of the enterprise Mexicana del Cobre; (2) the corresponding procedures are being followed and the Public Prosecutor is continuing to conduct investigations, carry out inspections and take statements to clarify the facts and for the possible imposition of penalties; (3) the autopsy excludes death caused by a shot to the head (as indicated by the complainant organization), with the findings of the autopsy indicating that the cause of death was cranial-encephalic traumatism and that moreover no witness maintained that he was killed by a projectile from a firearm; (4) it is not correct that the family of Reynaldo Hernández González was denied access to the body for five days, as the identification process conducted by the authorities involved the daughters of the deceased and the body was handed over two days after the death (during those two days, the autopsy was carried out, which involved the transfer of the body to the city of Hermosilla, as well as toxicological and other types of tests).
  1399. 1399 The Committee deeply deplores the death of the worker Reynaldo Hernández González and expects that the judicial proceedings will be completed as soon as possible. It requests the Government to provide a copy of the ruling.
  1400. 1400 With regard to the alleged capture of 20 members of the complainant union on 11 August 2007 who, according to the allegations, were tortured and detained for over 24 hours following an ambush of buses belonging to Grupo México, the Committee notes that the Government (which places the events, as indicated above, in the context of a confrontation between groups of miners) indicates that only seven persons were detained and that, when they were interviewed by the competent official of the Office of the Public Prosecutor, no charges of any type were made alleging physical or psychological ill-treatment; nor is any ill-treatment mentioned on the seven medical certificates for these persons, who had been detained in accordance with the terms and provisions set out by the applicable laws and regulations. The Committee requests the Government to indicate whether the seven trade unionists concerned were released.
  1401. 1401 With reference to the allegation concerning the establishment by Grupo México, with assistance from the Secretariat of Labour, of an enterprise union to oppose the complainant union and the pressure exerted on workers to vote for the new union, the Committee notes the Government’s statements according to which: (1) it denies the allegation that the STPS helped the enterprise to establish a “counter-union”; (2) the complainant union was no longer the accredited union for the labour agreement following the ballot requested from the Federal Conciliation and Arbitration Board by another union on 29 June 2007; (3) the result of the ballot (held in the presence, in addition to the public certifying officers of the Federal Board, of federal inspectors and representatives of each of the unions and the eight enterprises of Grupo Minera México located in Chihuahua, Sonora, Coahuila and San Luis de Potosí), in which the workers cast their votes freely and transparently, was that the complainant union received under 4 per cent of the votes with the other union obtaining over 96 per cent, with the latter accordingly being accredited for the labour agreements in those work centres; (5) the complainant union lodged amparo actions against the corresponding decisions of the Federal Conciliation and Arbitration Board which are currently under review. The Committee requests the Government to provide copies of the respective rulings of the judicial authorities.
  1402. 1402 In relation to the allegation that the strike in the Cananea mine, which was called on 30 June 2007 because of the inadequate occupational safety and health conditions, was declared illegal, the Committee notes the Government’s statements according to which: (1) the Federal Conciliation and Arbitration Board considered valid the reasons for finding the strike unlawful that were put forward by the enterprise Grupo Minera México since, to be lawful a strike has to be approved in an extraordinary general assembly, which was not demonstrated by the mining union, which failed to attach the records of the above assembly to the claims made when issuing the convocation for the assembly; furthermore, according to the documentation of the union and of the enterprise, the strike did not begin at the time indicated by the union, contrary to the requirements of the law; (2) in view of the above, on 11 January 2008, the Federal Board notified the mining union that the strike called by the union on 30 July 2007 had been declared unlawful; (3) the decision of 11 January 2008 was issued by the Federal Conciliation and Arbitration Board in strict compliance with the measures ordered by the First Collegiate Labour Court of the First Circuit which, on 21 December 2007, had set aside the first decision issued by the Federal Board in this case and ordered it to reach another decision; (4) under the terms of section 932(I) of the Federal Labour Act, the workers are under the obligation to return to work within a period of no longer than 24 hours and if they fail to do so the enterprise may terminate the employment relationships of such workers without incurring any liability; (5) with a view to ensuring the right to work of the workers, as set out in both the Political Constitution of the United States of Mexico and the Federal Labour Act, the Federal Conciliation and Arbitration Board requested the assistance of the federal forces of order and those of the State of Sonora to ensure that the workers were provided with the necessary guarantees so that they could return to their jobs in the Cananea mine with absolute freedom.
  1403. 1403 In this respect, the Government categorically denies the allegation in the IMF’s communication that 700 members of the armed forces of the army and the federal security forces were called to expel the strikers from the entrances to the mines and rebuts the allegation that the police and soldiers fired rubber bullets and tear gas against the workers. On the contrary, according to the Government, the presence of the security forces was fully justified to guarantee the full exercise of the right to work, the right of association and freedom of movement, as set out in the Political Constitution of the United States of Mexico, and to prevent potential confrontations and, where appropriate, contain acts of provocation.
  1404. 1404 The Committee also notes the Government’s statements that: (1) the SNTMMSRM lodged an amparo action against the above decision (to declare the strike called on 30 June 2007 illegal) of the Federal Conciliation and Arbitration Board with the Sixth District Labour Court of the Federal District which months later found that the strike should be declared lawful, which was confirmed by the Collegiate Labour Court of the First Circuit in April 2008; on 28 April 2008, the Federal Conciliation and Arbitration Board, in compliance with this ruling, declared the strike in the Cananea mine to be lawful; accordingly, the strike is continuing and there will be no work in the mine until the parties reach agreement; (2) the complainant union therefore had access to the legal relief and remedies envisaged by the Mexican legal system and, moreover, through the STPS, the Government is leaving the door open for dialogue and conciliation between the union and the enterprise with a view to achieving labour peace; nevertheless, the STPS has taken measures to reinforce safety conditions in the mine, ordering a total of 261 technical measures; (3) between the lodging of the amparo action against the decision by the Federal Board to declare the strike illegal and 28 April 2008, the Federal Board, as indicated above, requested the assistance of the federal forces of order and those of the State of Sonora to ensure that the workers could return to work in absolute freedom and to guarantee the exercise of the right to work and prevent potential confrontations; on 12 January 2008, the Federal Board was notified by the judicial amparo authorities of the provisional suspension of its decision to declare the strike unlawful, thereby permitting negotiations, the return to work of those who so wished (and consequently the maintenance of production) and ensuring that the contracts of employment of the strikers were not considered to be terminated; on 21 January 2008, the Sixth District Court granted the final suspension of the decision by the Federal Board; for its part, the STPS considered it appropriate, while awaiting the final ruling on the amparo action for the enterprise to refrain from hiring third persons for work which corresponded to the operations usually performed by unionized personnel, as set out in the collective agreement.
  1405. 1405 The Committee concludes, following the court ruling that the strike was lawful – and is lawful – that the exercise of the right to strike in the Cananea mine was fully reinstated by the courts on the basis of an amparo action, but the Committee emphasizes that the ruling was handed down at the end of April 2008, even though it observes that in January 2008 there was a court decision ordering the interim suspension of the decision to declare the strike unlawful. The Committee considers that as the strike was called on 30 July 2007 it is bound to regret the long period that elapsed before it was fully reinstated by court order and the prejudice that this caused to the complainant union and its members. The Committee reiterates its previous conclusions on justice delayed and the need for expeditious judicial procedures. The Committee also requests the Government to provide more detailed observations on the alleged violent expulsion of strikers who were in the entrances to the Cananea mine and in general on the intervention of the public security forces in this collective dispute (in respect of which the Government has only denied the intervention of the army and refers to the presence of public security forces to guarantee the right to work of non-strikers).
  1406. 1406 The Committee requests the Government to reply without delay to the remaining allegations of the IMF of 28 January 2008 relating to:
• – the death threats, abductions, illegal arrest and beating of miners belonging to the union and their families;
• – the assault on 20 April 2006 by the forces of order on strikers engaged in protest action in the Sicausta steelworks in the city of Lázaro Cárdenas in which the police and soldiers injured over 100 workers and killed two after opening fire; and
• – the abduction, beating and death threats against the wife of Mario García Ortiz, member of the executive committee of the complainant union, on account of “her husband’s errors”; she was able to escape, but there was no investigation.
  1407. 1407 The Committee urges the Government to carry out a full and independent investigation without delay into all of the pending allegations and to keep it informed in this respect. Finally, the Committee takes note of the various actions of the Government to favour dialogue between the complainant trade union and the company, and calls on all the parties concerned to continue to make efforts within the existing round of negotiations to resolve the collective dispute to which this case relates.