Rapport définitif - Rapport No. 326, Novembre 2001

and anti-union discrimination by the employer

1. 376. The Committee examined this case at its March 2000 and March 2001 meetings and submitted interim reports to the Governing Body [see 320th Report, paras. 723-734 and 324th Report, paras. 685-716, approved by the Governing Body at its 277th and 280th Sessions (March 2000 and March 2001)].
2. 377. At the Committee’s request, the Government sent new observations in a communication dated 31 May and 26 October 2001 and the complainant in a communication dated 1 June 2001.
3. 378. Mexico has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), but has not ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 379. In its previous examination of the case, the Committee formulated the following conclusions and recommendations [see 324th Report, paras. 710-715]:
   • – The Committee notes that the questions raised by the complainant teachers’ organization relate to the following: (1) the refusal to register SINTACONALEP since its establishment on 2 February 1997; and (2) acts of interference and discrimination against the members of this organization by the National College of Technical Occupational Education (CONALEP).
   • – As regards the refusal to register SINTACONALEP since it was established on 2 February 1997, the Committee notes that according to the Government, the judgements handed down in the actions for amparo lodged by SINTACONALEP illustrate that the administrative authority acted in accordance with the law by refusing to register this organization. The Committee observes in this respect that it is a requirement for the registration of a trade union that it be made up of at least 20 workers and that SINTACONALEP did not prove to the General Directorate for the Registration of Associations that at least 20 of its members had the status of worker; similarly, the competent labour authority ascertained through inspections in various schools that there was no labour relationship between the members of SINTACONALEP and CONALEP but instead a relationship of a civil nature based on the provision of professional services. The Committee notes that according to the Government’s declarations these contracts for the provision of services are justified: (1) as a result of imbalances between available technical teaching and local and regional requirements; (2) because different industries provide CONALEP, on the basis of its needs, with highly specialized individuals working in the sector of production, and the fees they are paid do not, in principle, constitute their sole or principal source of income; and (3) given that the staff is contracted by semester with the groups of teachers frequently varying from semester to semester on the basis of the requirements of the labour market in each region, with it not being possible to have permanent instructors.
   • – The Committee notes that, according to the Government, at no time did CONALEP stop its staff from establishing associations as they saw fit in order to be able to conclude collective agreements, as demonstrated by the fact that they have a trade union (SUTSEN) which has signed a collective agreement and also a civil association made up of teachers from the institution. Similarly, according to the Government, nothing prevents the members of SINTACONALEP from setting up a civil association to defend and promote validly and effectively its members’ interests.
   • – The Committee considers that before formulating definitive conclusions about the allegation relating to the denial to grant trade union registration to SINTACONALEP it is necessary for the Government and the complainant to indicate specifically whether in the framework of a civil association the members of SINTACONALEP could conclude collective agreements with CONALEP, go on strike and engage in other types of action to enforce their claims, and whether they would have legal protection for any prejudicial acts they might carry out in defence of their economic and social interests, indicating, if so, the scope of this protection and its legal basis.
   • – Furthermore, the Committee notes that the members of SINTACONALEP carry out teaching activities for a period of at least six months and that this type of activity is performed by hundreds or even thousands of people. Although the Committee observes that, according to the Government, the persons concerned sign contracts for the provision of services, it is unable to determine as yet whether they are workers in the sense of Convention No. 87, and specifically if their status can be likened to that of workers employed on a fixed-term basis. Consequently, the Committee requests the Government and the complainant to provide further details on the content of the contracts for the provision of services, and also to send copies of such contracts together with as much information as possible on conditions of work (hours of work, paid leave, etc.), the employment relationship – if any – of the management staff of CONALEP, the application of occupational safety and health standards and social security standards, and the legal provisions regulating the termination of the contractual relationship between the parties.
   • – Lastly, the Committee notes the Government’s observations concerning the alleged acts of interference and discrimination against the members of SINTACONALEP, but it considers that it should postpone its examination until it is in a position to formulate definitive conclusions on the allegations addressed in previous paragraphs.
2. 380. As regards the recommendation of the Committee on Freedom of Association concerning the allegations of interference and discrimination by CONALEP, in which the Committee requested the Government to conduct an inquiry into the acts and to provide detailed and specific information, the Government had declared that the competent authorities had carried out an exhaustive investigation into the cases submitted to the boards of conciliation and arbitration relating to the allegations of interference and discrimination by CONALEP against the complainants, but had not found any evidence of claims in this respect by the trade union of workers (SUTSEN) of CONALEP or by the civil association established by teachers in that institution for the purpose of reaching collective agreements. With respect to the accusation that CONALEP obliged the complainants to sign various documents contrary to their interests, no evidence of this had been found. At present this educational institution employs approximately 17,000 teachers in its 261 centres, distributed throughout the country, and no other complaints had been made [see 324th Report, paras. 705 and 706].

B. The Government’s first reply

1. 381. In its communication dated 31 May 2001, referring to the recommendation contained in paragraph 716(a) of the 324th Report, the Government explains that civil law and labour law are entirely different. Matters relating to civil associations are regulated in civil law and those pertaining to trade unions in labour law. Moreover, it should be pointed out that the sphere of activity of a civil association does not fall within the subject matter of the complaint raised by the complainant, neither is it covered by the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), ratified by Mexico in 1950.
2. 382. The objective or social aim of a civil association may vary, as long as it meets the following characteristics: (a) it is feasible; (b) it is legal; (c) it is not of a predominantly economic nature. Section 2670, Title I, Chapter I, of the Civil Code provides that: “where a number of individuals join together in a manner that is not entirely transitory in pursuit of a common purpose that is not prohibited by law and is not of a predominantly economic nature, they shall form an association”. The Government adds that within the legal framework established by the civil legislation in force in the United Mexican States, civil or ordinary law does not lay down more extensive requirements and formalities for a group of citizens legally establishing an association vested with its intrinsic rights and obligations in pursuit of a common purpose which is not prohibited by law and is not of a predominantly economic nature (general rule), sections 267-268(7) of the Federal Civil Code and the corresponding sections of the Civil Code for the Federal District.
3. 383. It should be pointed out that upon being established a civil association gives rise to a body corporate which is different from that of its members. Should the members of the SINTACONALEP form an association which is civil in nature, it would only be able to enter into contracts with CONALEP in those aspects which its own social aim allows.
4. 384. In the labour sphere, on the other hand, section 356 of the Federal Labour Act defines the sui generis legal concept of a trade union or trade union association as “an association of workers or employers set up for the study, improvement and defence of their respective interests”. A trade union is deemed to be a permanent coalition for the purposes of calling a strike in accordance with the provisions of section 441 of the same Act.
5. 385. It is clear from the above that an association in the civil sphere is entirely different from one in the labour sphere, as they pursue different objectives. While the first type of association is not of a predominantly economic nature, the latter has as its objective the study, improvement and defence of the workers’ or employers’ interests, as the case may be (section 356 of the Federal Labour Act). A strike should have as its objective the achievement of an equilibrium between the different factors of production, harmonizing the rights of labour and capital (clause I of section 450 of the Federal Labour Act).
6. 386. That being so, in the framework of a civil association, the members of SINTACONALEP would not be able to conclude collective labour agreements with CONALEP, since, as stated by the Federal Labour Act (section 386), it is the unions, whether of workers or of employers, which can conclude this type of agreement. The sine qua non condition for declaring a strike is that this right be exercised by workers. A strike is the temporary suspension of work brought about by a coalition of workers under section 440 of the Federal Labour Act. The requirements for holding a strike are contained in section 451, clause II, of the same Act.
7. 387. According to section 450 of the Federal Labour Act, a strike shall have the following objectives:
   • I. achieving equilibrium between the different factors of production, harmonizing the rights of labour and capital;
   • II. making the employer or employers agree to conclude a collective labour agreement and demanding its revision on the expiry of its term, pursuant to Chapter III of Title VII;
   • III. making the employers agree to conclude an agreement having generally binding force and demanding its revision on the expiry of its term, pursuant to Chapter IV of Title VII;
   • IV. demanding compliance with a collective labour agreement or an agreement having generally binding force in enterprises or establishments where such agreement is not observed;
   • V. demanding compliance with the legal provisions respecting profit sharing;
   • VI. supporting a strike having as its objective any of the purposes enumerated in the previous clauses;
   • VII. demanding a revision of the wages fixed in collective agreements, referred to in sections 399bis and 419bis.
8. 388. It should be made clear that the right to strike comes exclusively within the sphere of labour law which, as mentioned above, is independent of civil law.
9. 389. As regards the possibility of a civil association obtaining legal protection in the event of violation of guarantees or against acts of the authorities, they have the possibility of lodging an action for protection of their constitutional rights (amparo), pursuant to articles 103 and 107 of the Political Constitution of the United Mexican States.
10. 390. As regards the recommendation contained in paragraph 716(b) of the 324th Report, the Government reiterates that the legal nature of a contract for the provision of professional services is very different from that of employment contracts; the former is a civil contract and the latter a labour contract. The rights and obligations deriving from each type of contract are accordingly different. The two branches of law are independent of one another. A contract for the provision of professional services is concluded in very specific circumstances and at no time is intended to replace employment contracts. In accordance with the civil legislation in force, the complainants and CONALEP concluded contracts for the provision of professional services subject to the payment of fees for a specified period, pursuant to the principle prevailing in civil law of autonomy of the will of the parties to enter into a contract or an obligation, thus expressing the complete willingness of both parties to enter into a civil relationship in which all the essential statutory requirements for existence and validity are met in order for these legal documents to be fully effective in civil law. The content of the civil contracts in question is intended to establish an agreement of will for the provision of professional services subject to the payment of fees pursuant to Chapter II, Title X, Part II, Book IV, of the Federal Civil Code and the corresponding provisions of state legislation.
11. 391. A contract for the provision of professional services is one under which one person, referred to as a professional, undertakes to provide specified services requiring technical training and in some cases a professional certificate to another person, referred to as the client, who undertakes to pay a specified remuneration, referred to as the fee.
12. 392. It should be pointed out that a provider of professional services subject to the payment of fees who teaches in CONALEP is characterized by his or her professional qualities, specialty or specific skills, and teaches students following the various courses different subjects contained in the curricula.
13. 393. Given the nature of the training process and the curriculum content, which are directly linked to technological developments, preference is given to persons working in the production sector when selecting instructors with whom to conclude contracts for the provision of professional services. Providers of professional services are technicians or professionals. Section 2608 of Chapter II of Title X of the Civil Code provides that persons who do not hold the relevant certificate and engage in occupations for which such a certificate is required by law, in addition to being liable to the applicable penalties, are not entitled to receive remuneration for the services which they provided.
14. 394. It is also important to point out that the contract for the provision of professional services does not give rise to a subordinate relationship such as exists under employment contracts, but such persons merely exercise their profession and work on their own account.
15. 395. As regards the employment relationship, if any, of the management staff of CONALEP, it should be mentioned that this is a civil and not a labour relationship. Therefore the civil contracts entered into by the parties solely require the provider of professional services to provide such services for a specified period. As for CONALEP, it is obliged to remunerate such services by paying a fixed amount of fees for the period fixed by mutual agreement as the term of the civil contract. Therefore contracts for the provision of professional services concluded between CONALEP and instructors by no means contain clauses including benefits other than those under civil law, such as wages, paid leave, end-of-year bonuses, occupational safety and health or social security standards.
16. 396. As regards the legal provisions regulating the termination of the contractual relationship between the parties, the law does not provide for specific grounds for termination of this contract, and therefore the grounds for such termination are those which are normal and common to all contracts.
17. 397. It is important to emphasize that in each civil contract concluded by the providers of professional services and CONALEP, the term of the contract and period of effect of the civil relationship which they enter into is established by mutual agreement, and therefore such agreements between the parties cease to have legal effect upon expiry of the term agreed to by the parties; the contract may also be terminated before the expiry of its term either by agreement between the parties or because one of the parties is in breach of contract, giving rise to its rescission in accordance with the specific and general provisions laid down in the Federal Civil Code and the corresponding provisions of the Civil Code for the Federal District, which is the applicable legislation, in the light of which the abovementioned agreements termed contracts for the provision of professional services subject to the payment of fees are sanctioned. In response to the request of the Committee on Freedom of Association, a copy of one of these contracts is attached.
18. 398. Concerning the recommendation contained in paragraph 716(c) of the 324th Report of the Committee, the Government states that it is not responding to this paragraph, given that the Committee on Freedom of Association does not request information.
19. 399. Having stated the above, the Government of Mexico wishes to point out that after examining the labour legislation in force, Convention No. 87 and ILO case law on freedom of association, it notes that no provision refers to civil associations; and therefore the Committee’s request for information does not lie within the scope of labour law which, as has already been demonstrated, has nothing to do with the system of civil law. Once again, the legal relationship between the complainants and CONALEP lies entirely within the scope of civil law.
20. 400. The Government considers that ample explanations have been given concerning the elements that initially gave rise to the present complaint, specifically with regard to the grounds on which registration was denied to the complainants’ trade union. The Government of Mexico points out that the complainants availed themselves of the appropriate remedies before the competent judicial authorities to contest the refusal to register their trade union. The authorities which examined the actions of amparo and appeals for review (in this case the first district labour court of the Federal District and the second district labour court of the Federal District; see paragraphs 703 and 704 of the 324th Report) were different from the administrative authority which initially denied registration, i.e. the General Directorate for the Registration of Associations. This is in accordance with paragraphs 246 and 264 of the Digest of decisions and principles of the Freedom of Association Committee (“246. The absence of recourse to a judicial authority against any refusal by the Ministry to grant an authorization to establish a trade union violates the principles of freedom of association”; “264. An appeal should lie to the courts against any administrative decision concerning the registration of a trade union. Such a right of appeal constitutes a necessary safeguard against unlawful or ill-founded decisions by the authorities responsible for registration”). The Government attaches a copy of a contract for the provision of services currently in force in CONALEP.

C. New information provided by the complainant

• at the Committee’s request
  401. 401 In its communication of June 2000, the Academic Workers’ Union of the National College of Technical Occupational Education (SINTACONALEP), referring to the Committee’s recommendation contained in paragraph 716(a) of its 324th Report, states that there is a major difference between a trade union and a civil association in Mexico, given that the latter cannot exercise the right to strike or the right to conclude collective agreements, since Mexican legislation restricts the legal exercise of this right solely to trade unions; therefore a civil association has no effective means of enforcing its claims and hence it is impossible in practice for collective agreements to be concluded with CONALEP. If the instructors of SINTACONALEP were to establish a civil association and wished to engage in a strike movement or seek to conclude collective agreements, in doing so they would be committing an offence, i.e. they would have no legal protection given that the protection afforded them by law allows them only to associate in defence of a common purpose, but by no means permits them to exercise the right to strike. Therefore in Mexico civil associations and trade unions are governed by different laws, the former by the Civil Code and the latter by the Federal Labour Act, which regulates the right to strike.
  402. 402 To conclude, in Mexico trade unions are the only groups that may legally exercise the right to strike and conclude collective agreements, given that civil associations do not enjoy this right.
  403. 403 Concerning recommendation (b) of the Committee, the complainant attaches four payslips indicating the pay levels at which CONALEP recruits its instructors, hours of work, work schedules and amount of remuneration, as well as 15 original contracts for the provision of professional services which CONALEP requires its instructors to sign. What is distinctive about these contracts is that they contain a waiver of essential labour rights such as job security, paid leave and holiday bonuses, and provide that the hours of work are unilaterally changed every six months by CONALEP. Concerning these contracts for the provision of professional services, which were recently examined by the amparo courts in Mexico, it was found that they give rise to an employment relationship of the academic staff providing services to CONALEP (amparo 19832/2000); a certified copy is attached, as well as a copy of the final ruling handed down by the labour authority in Action No. 1068/97 brought by David Pedroza Aparicio and others. The concluding part of this judgement orders CONALEP to recognize the right of various instructors as employees of this institution and to pay social security contributions, leave pay and holiday bonuses. A copy of this judgement is also attached.
  404. 404 According to the complainant, the instructors of CONALEP in question perform continuous, permanent and necessary work for the National College of Technical Occupational Education and, in performing their personal services, they have a work schedule (class schedule), a physical area where this takes place (classrooms), wages paid for their work, an immediate supervisor, staff who give instructions and provide guidance in carrying out their work, staff supervising their work, curricula previously drawn up by CONALEP in the different subjects they teach, and training courses to achieve academic excellence; moreover, the work was performed using resources provided by CONALEP and was directly related to the predominant and sole activity of CONALEP. There is therefore a relationship of subordination between the plaintiff and CONALEP.
  405. 405 CONALEP also has the obligation – among others – to train its academic staff, to design, prepare, approve, supervise, evaluate, update and modify its curricula and design training and refresher courses and specialization courses to enhance the professional skills of its teaching staff; adapt training, refresher courses and specialization courses for instructors according to the curricula in force, drafting the training materials for such courses; it also issues the documents and certificates to academic staff who pass the training, refresher courses and specialization courses required of all the instructors; moreover, CONALEP revises and updates the curricula, courses and teaching materials for instructor training. This is laid down in the Statutes of the National College of Technical Occupational Education (CONALEP) of 1998.
  406. 406 To demonstrate the employment relationship that exists between CONALEP and its teaching staff, the complainant provides the following example: Ms. Martha Ceron Arroyo, who held a position of trust in the Aragón establishment of CONALEP, filed a labour complaint against the College in writing with the Clerk of the Federal Board of Conciliation and Arbitration on 27 September 1997 demanding reinstatement in her post as deputy chief specialist technician in the academic services coordination department of the Aragón establishment of the College, in view of the fact that she was wrongfully dismissed. This labour complaint was filed with Special Board No. 14 of the Federal Board of Conciliation and Arbitration under Case No. 1626/97. In a hearing on 5 June 1998 the National College of Technical Occupational Education contested this complaint and in reply to item (3) of the complaint the College acknowledged that Ms. Martha Ceron Arroyo, among other tasks, drew up the work schedules of CONALEP instructors in the Aragón establishment, supervised progress in the curricula, verified whether instructors were teaching the programme in an appropriate manner, checked attendance of instructors and reported on tardiness, among other activities; her immediate supervisor was a coordinator of academic services of the Aragón establishment of CONALEP. The foregoing amply demonstrates the subordinate relationship that exists between the College and its teaching staff through the express admission made by the College before the labour authority (copies attached).
  407. 407 Lastly, the complainant points out that CONALEP has not registered its teaching staff with any social security scheme, neither does it apply occupational safety and health programmes, despite the fact that the Mexican social security laws clearly stipulate that all employers have the obligation of registering their employees with the social security institutions.

D. The Government’s further reply

1. 408. As regards the new information submitted by SINTACONALEP, the Government reiterates its previous observations and states that it is erroneous to assert that only trade unions may strike, since workers’ associations may also exercise the right to strike under section 440 of the Federal Labour Act. Furthermore, it is not true that the contracts for professional services contain a list of labour rights to be waived. In the case of the complaint, the Government explains that these contracts are not labour contracts, but rather civil contracts for services rendered.
2. 409. Regarding SINTACONALEP’s argument that the court which examined the amparo proceedings No. 19832/2000 decided that the contracts for professional services had created an employment relationship between CONALEP and the teachers in respect of services provided, the Government points out that one out of the five persons who filed amparo proceedings had recourse to conciliation in order to settle the dispute with CONALEP, but that no final decision has been issued to date. The Government adds that said decision applies only to the five persons who filed amparo proceedings, and not to all the teaching staff of CONALEP.
3. 410. The Government adds that there exists another amparo decision of the lower court of the first Circuit (ADL 232/2001), dated 16 August 2001, where the judges concluded that CONALEP had clearly established that the contract for professional services created only a civil relationship between itself and SINTACONALEP.
4. 411. As regards SINTACONALEP’s assertion that CONALEP admitted to the judge at the hearing on the complaint filed by Mrs. Martha Ceron Arroyo that she had “inter alia exercised functions with the same work hours as teachers ...”, the Government points out that this does not constitute evidence of a hierarchical relationship between teachers and CONALEP, since such relationship cannot exist in the absence of an arbitral award to that effect.
5. 412. CONALEP did not register any of its teachers with a social security body because they have been hired to provide professional services, that being so, CONALEP is under no obligation to insure them.

E. The Committee’s conclusions

• Refusal to register SINTACONALEP since its establishment on 2 February 1997
  413. 413 The Committee had noted from its previous examination of the case that the judicial authority found that the administrative authority had acted in accordance with the law by refusing to register SINTACONALEP, since this organization had not proved to the administrative authority that at least 20 of its members had the status of worker of the institution. The Committee had also noted that CONALEP had a trade union (SUTSEN) which had signed a collective agreement and also a civil association. The Government had stated that nothing prevented the members of SINTACONALEP from setting up a civil association to defend and promote its members’ interests validly and effectively.
  414. 414 The Committee notes the recent observations of the Government to the effect that as members of a civil association the members of SINTACONALEP cannot conclude collective labour agreements with CONALEP, since they are not workers within the meaning of the Federal Labour Act, but holders of contracts for the provision of professional services for a specified period, i.e. in a civil relationship in which there is no relationship of subordination such as that which exists under employment contracts, and if there is a dependent relationship it is of a civil, not a labour, nature; these contracts for the provision of services do not contain clauses covering benefits other than those under civil law, such as wages, paid leave, holiday bonuses, occupational safety and health or social security standards; neither can the members of SINTACONALEP exercise the right to strike, since they are not workers within the meaning of the Federal Labour Act.
  415. 415 The Committee concludes that the organization of the members of SINTACONALEP as a civil association, contrary to the Government’s statements, does not allow them to defend and promote the interests of their members in a valid and effective manner from the standpoint of the requirements of Convention No. 87 and the principles of freedom of association in general, which is incompatible with such principles. The Committee notes the recent judgement communicated by SINTACONALEP in which the judicial authority recognizes the status of worker of several instructors of SINTACONALEP who had signed contracts for the provision of services. The Committee notes that, according to the Government, no final decision has been issued yet in this matter, only the five persons who have filed proceedings are protected, and that there exist other recent judicial decisions concerning CONALEP which have recognized that a civil relationship had been established. Nonetheless, it does not appear to be feasible to carry out a case-by-case examination of the 17,000 instructors of CONALEP to determine whether or not they are workers within the meaning of the Federal Labour Act.
  416. 416 The Committee recalls that “by virtue of the principles of freedom of association, all workers – with the sole exception of members of the armed forces and police – should have the right to establish and to join organizations of their own choosing. The criterion for determining the persons covered by that right, therefore, is not based on the existence of an employment relationship, which is often non-existent, for example, in the case of agricultural workers, self-employed workers in general or those who practice liberal professions, who should nevertheless enjoy the right to organize” [see Digest of decisions and principles of the Freedom of Association Committee, 4th (revised) edition, 1996, para. 235]. Specifically, with regard to the instructors governed by contracts for the provision of services, the Committee considers that since Convention No. 87 only allows exclusion from its scope of the armed forces and the police, the instructors in question should be able to establish, and join, organizations of their own choosing (Article 2 of Convention No. 87). In these circumstances, the Committee requests the Government to take steps to guarantee that the teaching staff in question who are governed by contracts for professional services and other categories in similar conditions may legally establish, and join, organizations of their own choosing for the promotion and defence of their interests.
• Allegations of acts of interference and anti-union discrimination
  417. 417 The Committee notes that according to the Government, after an exhaustive investigation the authorities did not find any complaints lodged in this respect; moreover, according to the Government, no evidence has been found that anyone was compelled to sign documents contrary to their interests. Given the contradiction between the allegations of the complainant and the Government’s reply, the Committee is not in a position to formulate conclusions.