Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Mexico (Ratification: 2018)

Other comments on C098

Direct Request

2021

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The Committee notes the first report sent by the Government. The Committee notes the observations of the Authentic Workers’ Confederation of the Republic of Mexico (CAT), the Autonomous Confederation of Workers and Employees of Mexico (CATEM), the International Confederation of Workers (CIT), the Regional Confederation of Mexican Workers (CROM), the Confederation of Workers of Mexico (CTM), sent with the Government’s report, which are concerned with matters raised in this comment.

The Committee also notes the observations of the IndustriALL Global Union (IndustriALL), received on 1 September 2021, on matters raised in this comment and allegations addressed in Case No. 2694 being examined by the Committee on Freedom of Association, as well as the Government’s reply to these observations.

The Committee recalls that, as follow-up to observations made by workers’ organizations alleging that the operation of conciliation and arbitration boards was impeding the exercise of freedom of association, it previously noted with satisfaction, in its examination of the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the adoption and entry into force in February 2017 of the reform of the Political Constitution of Mexico, as part of the process to reform the labour justice system, as well as challenges arising with regard to its effective implementation. The reform is concerned, inter alia, with key questions relating to the application of this Convention and it introduced, through amendments to the Federal Labour Act (LFT) adopted on 1 May 2019 and other legislative and regulatory reforms, the following main changes: that labour justice is vested with federal or local bodies of the judicial authorities (to which the functions of the conciliation and arbitration boards in this respect are transferred); that conciliation procedures (a stage that generally precedes recourse to labour tribunals) are more flexible and effective (with the establishment of specialized, impartial conciliation centres in each of the federative entities), and that the federal conciliation body is a decentralized agency with responsibility for the registration of all collective labour agreements and trade unions. The Committee notes the information provided by the Government on the “National Strategy for the implementation of the labour justice system”, the fundamental components of which include: (i) to guarantee freedom of association, trade union democracy, genuine collective bargaining and the principle of representativeness in trade unions, by means of personal, free, secret and direct ballots by workers; and (ii) ensuring that the registration of collective labour agreements and of trade unions are governed by the principles of certainty, transparency, democracy and freedom.

Article 1 of the Convention. Protection against anti-union discrimination. Effective and swift procedures. The Committee observes that the Political Constitution of Mexico and the Federal Labour Act provide general protection for persons and workers against acts of discrimination (for example, in LFT sections 2, 3 and 133(I), on the prohibition of acts of discrimination in general, and section 133(IX), which imposes a general ban on employers or their representatives from using “blacklists” to preventing the re-hiring of workers who terminate their employment or have their employment terminated). The Committee also notes the information provided by the Government on the prohibitions on employers or their representatives from obliging workers through coercion or other means to join or leave the union or grouping to which they belong, and also on any act or omission that violates their right to decide who should represent them in collective bargaining, including a ban on obliging workers to belong, or not to belong, to a trade union, federation or confederation (LFT section 133(IV) and section 358, first sentence). In this regard, the Committee observes that general forms of protection are provided for in the LFT with respect to: (i) changes to conditions of work and related requirements and procedures; and (ii) the termination of individual or collective employment relationships, justified grounds, requirements and procedures which must be followed, and the possibility of reinstatement and payment of compensation. The Committee observes that such forms of protection are general and applicable to all workers, without establishing special protection for cases involving acts of anti-union discrimination against trade union representatives or officers. In this regard, concerning trade union officers and representatives, the Committee recalls that while the Convention requires protection against acts of anti-union discrimination in relation to all workers, the protection provided for in the Convention is particularly important in the case of trade union representatives and officers (see 2012 General Survey concerning the fundamental Conventions, paragraph 186). The Committee also notes that the reforms to the LFT provide that, in addition to the compensation measures that can be adopted in the wake of violations of the above-mentioned provisions, penalties can also be imposed varying from 250 to 5,000 “updated measurement units” (unidades de medida y actualización – UMA) (the daily value of which for 2021 corresponds to 89.62 Mexican pesos (MXN) or 4.19 US dollars (USD), which means that the fines range from US$1,047.50 to 20,950) on any employer who commits “any discriminatory act or conduct in the workplace” and which can be doubled for a repeat offence. Under the terms of the LFT, for the imposition of such fines, the authority will apply the penalty with respect to each affected worker and will take into account the intent, the seriousness of the offence, the potential or actual injury caused and the economic capacity of the offender. While welcoming these reforms and protections, the Committee requests the Government to provide information on their impact in practice, including detailed statistics on the number of cases of anti-union discrimination examined, both in the newly established bodies and in the federal and local conciliation and arbitration boards which are still operating, and detailed information on cases involving trade union officers and representatives, the duration of procedures, and the type of penalties and compensation measures imposed.

Article 2. Protection against acts of interference. Rapid and impartial procedures. Effective and sufficiently dissuasive penalties. The Committee notes with interest the introduction of various prohibitions into the reform of the LFT, relating to acts of interference by employers or their representatives, including: (i) intervening in the internal regulations of the union, obstructing its establishment or the performance of trade union activity through reprisals against workers; (ii) carrying out any act aimed at exercising control over the union to which the workers belong; (iii) obliging workers by coercion or other means to join or leave a union, or to vote for a specific candidate, or any other act or omission which violates their right to decide who should represent them in collective bargaining; and (iv) carrying out actions or measures aimed at promoting the formation of workers’ organizations dominated by an employer or employers’ organization, or to support workers’ organizations in any way aimed at placing them under their control. The Committee notes the information provided by the Government on the establishment of penalties applicable to any persons who seek to interfere in or control a trade union organization with regard to its formation, operation or administration. In this regard, the Committee notes that section 994 of the LFT establishes the possibility of fines being imposed on any employer who infringes the established provisions, under the same parameters as those foreseen for anti-union discrimination - outlined above. The Committee also notes the observations of the CROM indicating that the reform of the LFT has entailed new obligations and prohibitions for both employers and trade unions in order to guarantee freedom of association and the expression of the will of the workers with essential elements of democracy through personal, free and secret ballots to ensure the protection of collective bargaining. In this regard, the Committee notes the measures established in section 378 of the LFT to address issues connected to protection contracts, including prohibitions on: (i) establishing or using records referring to the holding of ballots or consultations with workers without them having been conducted: and (ii) obstructing the participation of workers in procedures for the election of their trade union executive committees, imposing conditions without any legal basis or any type of undue hindrance to exercising the right to vote or being voted for. Furthermore, the Committee notes that the Government has emphasized in its “National Strategy for the implementation of the labour justice system” referred to above that the resolution of disputes through conciliation prior to recourse to judicial proceedings is a fundamental component in the implementation of labour reform, but that conciliation procedures do not necessarily have to be exhausted and that the parties could have direct access to labour tribunals where disputes are concerned that relate to the protection of fundamental rights and civil liberties, including the right to organize, freedom of association, and effective recognition of collective bargaining (section 685ter LFT). The Committee notes that in order to be able to opt for direct access to the labour tribunals, evidence must be provided enabling the tribunal to consider that there is the reasonable suspicion, appearance or presumption that any of these rights is being violated. The Committee also notes the Government’s indication that, in the event of violations of collective fundamental rights which undermine the right to organize, freedom of association and the right to collective bargaining, or where procedures for the election of trade union executive committees are challenged, or in the event of sanctions on trade unions which restrict the right to vote or be voted for, the LFT provides in sections 897 to 897-G for special summary proceedings. The Committee notes that where disputes are involved between unions regarding who is entitled to conclude a collective labour agreement and where employer interference is detected in the implementation thereof in favour of one of the rival unions or acts of violence are committed, the labour tribunal will take the necessary steps to ensure that the ballot of the workers goes ahead in freedom and safety, without prejudice to informing the relevant administrative and criminal authorities of the occurrences. The Committee requests the Government to provide information on the application of such protections and prohibitions in practice, including the resolution of disputes relating to protection against the acts of interference referred to above, providing detailed statistics on the number of cases of such violations of the fundamental rights to freedom of association and collective bargaining examined, both in the newly established entities and in the federal and local conciliation and arbitration boards that are still operating, the duration of proceedings, and also the type of penalties and compensation measures imposed.

Article 4. Criteria for representativity. The Committee notes with interest the different mechanisms for the promotion of collective bargaining introduced through the collective labour reform, which include: (i) employers’ obligations to provide a copy of the collective agreements to the workers; (ii) the obligation to fix and publicize meetings relating to the consultation procedure on their collective agreement or entitlement for the negotiation of a collective agreement; (iii) the obligation of the Federal Labour Conciliation and Registration Centre concerning transparency and publication of trade union registers, accreditations (“toma de nota”), meeting records, etc.; and (iv) the establishment of specific rules relating to representativity. With reference to this last point, the Committee notes the information provided by the Government with respect to the various amendments and mechanisms envisaged in the LFT to guarantee the principle of representativity, based on workers’ personal, free, secret and direct ballot in the processes of: (i) elections of trade union executive boards; (ii) negotiation of collective agreements before and after negotiation; (iii) legal validation of collective labour agreements existing prior to the reform; and (iv) trade union disputes over who is entitled to negotiate collective agreements. The Committee notes that, in order to negotiate a collective agreement, the trade union applying must already have the certificate of representativity issued by the Federal Centre of Labour Conciliation and Registration (provided for in LFT section 390Bis), which the Government indicates ensures that the given trade union has the support of at least 30 per cent of the workers covered by the collective agreement, thus complying with the principle in the Constitution of trade union representativity in collective bargaining. The Committee notes that, as more than one trade union is involved, the right to negotiate and conclude a collective agreement corresponds to the union with the highest number of votes in accordance with the rules set out in section 388 of the LFT (the number of workers who vote must be least 30 per cent of the workers covered by the collective agreement that is the subject of the application for conclusion of the agreement), which provides for collective bargaining at enterprise level: (i) if there are various enterprise or sectoral trade unions or both, the collective agreement shall be concluded with the one which has the highest number of affiliated workers within the enterprise; (ii) if there are various occupational trade unions, the collective agreement shall be signed with all the majority occupational trade unions, provided that they are in agreement among themselves. Where this is not the case, each trade union shall conclude a collective agreement for its profession; and (iii) if there are various occupational and enterprise or sectoral trade unions, the first may conclude a collective agreement for their profession, provided that the number of affiliates exceeds the number of workers of the same profession affiliated to the enterprise or sectoral trade union. The Committee emphasizes in this respect that it considers that the requirement of an excessively high percentage of representativity in order to be allowed to participate in collective bargaining can hinder the promotion and development of free and voluntary collective bargaining in accordance with the Convention. The Committee therefore requests the Government to provide information on the implementation in practice of the rules established when the support of at least 30 per cent of the workers covered by the collective agreement is not reached, including situations where different trade unions are competing for the negotiation of a collective agreement in an enterprise.

Promotion of collective bargaining at all levels. The Committee notes that the LFT does not establish any limitation in terms of the level at which collective bargaining may be carried out but that most of the provisions of this Act refer to bargaining at enterprise level. In this respect, the Committee recalls the need to ensure that collective bargaining is possible at all levels, both at the national level, and at the enterprise level (see the 2012 General Survey, paragraph 222). The Committee requests the Government to provide information on how collective bargaining is regulated and promoted at all levels, including at the multi-enterprise and sectoral level. The Committee also requests the Government to provide information on the impact of the labour reform on the exercise of collective bargaining, with comparative data on the number of collective agreements adopted by level and sector, comparing in particular between the enterprise level and higher levels, as well as the number of workers, specifying the number and percentage of workers in small enterprises covered by collective agreements.

Workers covered by collective bargaining. The Committee notes that the LFT, Title VI, provides for different categories of special jobs, including workers in positions of trust (for whom the LFT, section 183, provides that they may not form part of the unions of the other workers, but does not expressly provide that they may not establish or join unions or engage in collective bargaining), farm workers, transport workers, actors and musicians, professional sportspersons, traders and similar, homeworkers and domestic workers (the latter category including migrant workers). The Committee notes that only in some cases, such as for domestic workers, do the provisions in the relevant category expressly recognize that the conditions of such workers may be agreed in collective agreements. The Committee also notes the observations of IndustriALL, warning of the prevalence of forms of recruitment and work organization (for example, fee-based, interns, associates, tip-based, self-generated, merit-based, digital platform workers), which would sometimes used to avoid complying with labour obligations and obstruct freedom of association and collective bargaining. The Committee requests the Government to provide comments in this regard, in particular on which measures or mechanisms exist to promote collective bargaining relating to these categories of workers and different forms of recruitment.

Protection contracts. Lastly, the Committee refers to comments it has been making on representativity, and protection unions and contracts under the application of Convention No. 87. The Committee notes the Government’s indications that the necessary legislative and regulatory adjustments have been made to implement a new labour relations model that guarantees the full exercise of freedom of association and workers’ representation in collective bargaining, leaving behind the use of protection contracts to promote free and voluntary bargaining. From the information provided by the Government relating to the legal validation processes that have been conducted in order to move the existing collective bargaining agreements from one model to another, the Government states that as of 12 October 2021, 1,890 collective agreements have been legally validated, covering more than 900 thousand workers. In this respect, the Committee requests the Government to include in the broad tripatite consultation relating to the implementation of the labour reform the treatment of the problem of protection contracts from the perspective of the promotion of collective bargaining, and to provide information on the results, including the identification of any further measures that may be necessary for the application of Article 4 of the Convention, and to continue to provided information to the Committee on the number of collective agreements legally validated and the workers covered.

Articles 4 and 6. Collective bargaining of public servants not engaged in the administration of the State. The Committee notes that the Federal Act on State Employees (LFTSE) excludes from collective bargaining all workers covered by this Act, as it sets out in section 87 that the general conditions of work of the workers covered by the Act are fixed by the respective head of the competent agency, taking account of the opinion of the corresponding trade union where so requested, and that such conditions are revised every three years. The Committee recalls that persons employed in the public sector but who do not carry out activities related to the administration of the State (employees in public enterprises, municipal employees and those in decentralized entities, public sector teachers, and transport personnel, etc.) are covered by the Convention and should be able to negotiate collectively their conditions of employment, including their wage conditions, and that mere consultation of the unions concerned is not sufficient to meet the requirements of the Convention in this respect (see the 2012 General Survey, paragraphs 172 and 219). In light of the above, the Committee requests the Government to indicate the available mechanisms for the promotion of collective bargaining, established in conformity with the Convention for persons employed in the public sector but not engaged in the administration of the State.