Rapport définitif - Rapport No. 321, Juin 2000

1. 357. The complaint in this case is contained in a communication dated 17 January 2000 from the National Democratic Alliance of Oil Workers A.C. (ANDTP). That organization sent additional information in a communication in March 2000. The Government sent its observations in a communication dated 10 March 2000.
2. 358. Mexico has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), but not the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 359. In its communications of 17 January and March 2000, the National Democratic Alliance of Oil Workers A.C. (ANDTP) alleges that on 25 September 1997 the Trade Union of Oil Workers of the Republic of Mexico (STPRM) issued a convocation for elections of members of local executive committees, local supervisory councils, honour and justice committees and local union commissions, to be held between 1 January 1998 and 31 December 2000. On 29 September 1997, the STPRM informed workers, members and activists of its Section 35 by circular that an extraordinary general meeting would be held for the purpose of renewing the various trade union bodies mentioned above. The meeting was to be held on 8 October 1997 at the "7th of August" sports facility. The circular announced a registration period during which members could register their papers, the deadline for registration being 72 hours before the elections; this was in contravention of article 281 of the union's own by-laws, according to which the convocation must be sent out 20 days in advance. Thirteen members of the National Democratic Alliance of Oil Workers A.C. (ANDTP) and active members of Section 35 of the STPRM went to the union's offices on 2 October 1997 for the purpose of registering their voting papers, in accordance with the requirements of the convocation. The General Secretary of the local executive committee and the chairperson of the local supervisory council, who were at the union offices at the time, told them that registration had to be done at the registered office of Section 35, which was located in the federal district. The trade unionists went to the federal district on 3 October 1997 and arrived at the registered office at about 14.00; they were then told by the chief clerk that there was no one who could register their papers. When they returned at 17.00, the door was locked and they had to wait until 19.00 before anyone came.
2. 360. The complainant adds that on 8 October 1997, the day of the trade union elections, various irregularities took place: anyone was allowed to enter the premises without any checks, and workers in supervisory positions, retired workers and children did indeed enter the premises; there was no legal quorum for the meeting; the election of the chairperson was not done by direct ballot; voting took place through general acclamation and not by the procedure established in the by-laws; there were instances of physical assault against persons who called for a secret ballot and for the acceptance of voting papers of ANDTP members, who were subsequently expelled from the meeting.
3. 361. Faced with the failure to comply with legislation and STPRM by-laws, the Section 35 members applied to the competent jurisdictional authority, the Federal Conciliation and Arbitration Board, on 24 October for cancellation of the election results. The application called for the annulment of the election results and for a new convocation in accordance with the by-laws, as well as the annulment of the acknowledgment (toma de nota) issued by the General Directorate for the Registration of Associations (part of the Labour and Social Security Secretariat). On 29 October 1997, the Federal Conciliation and Arbitration Board, to which Section 35 of STPRM had applied, ruled as follows:
   • ... its claims do not come within the objectives and ends which constitutionally define the mandate and powers of this tribunal. This is because the dispute in question does not pertain to labour relations or circumstances related to them, but to purely internal trade union matters, in which it is of paramount importance to maintain the trade union autonomy which it is the aim of the international Conventions invoked here to protect. For this reason, the provisions of the respective by-laws must be adhered to. It is thus clear that this tribunal cannot override the express wishes of the union's members or act for them, nor can it call union elections or annul an acknowledgement (of registration) ... On these grounds, and given the impossibility under law for this tribunal to rule on the matters raised here, it is setting aside the present case which it declares closed.
4. 362. The complainant adds that, faced with this situation, it applied to the Collegiate Labour Tribunal on 21 November 1997 for amparo and protection of the federal courts. However, the Tribunal in a ruling of 11 February 1998 refused to grant the amparo, arguing that:
   • ... irrespective of whether or not the application is allowed, the Board rejects it in its entirety and declares the case closed, ... it is clear - regardless of the substance of the case - that the central issue here is a purely internal trade union matter ... the confrontation has taken place under circumstances of equality such that there are no grounds for overlooking any deficiencies in the substance of the complaint itself ... Under these circumstances, given the impossibility of examining the details of the claim with a view to determining its legality or illegality, it is also impossible to consider whether the individual rights of the complainants were infringed, and consequently, their request for protection (amparo) must be refused ...
5. 363. According to the complainant, the members of Section 35 subsequently appealed to the Labour and Social Security Secretariat which denied having any competence to hear and resolve internal trade union disputes.
6. 364. The complainant emphasizes that it is clear from the above that there is no authority, be it administrative or judicial, in the United Mexican States, with the competence to resolve internal trade union disputes. The Federal Conciliation and Arbitration Board has indicated that the dispute in question relates to purely internal trade union matters in which it is essential to maintain the trade union autonomy which it is the aim of the international Conventions invoked here to protect. For this reason, the provisions of the respective by-laws must be adhered to. According to the complainant, this makes the trade union in question the arbitrator as well as party in its own disputes, without any guarantee of impartial, objective and swift due process.

B. The Government's reply

1. 365. In its communication of 10 March 2000, the Government states that Mexican law does provide for specific complaint procedures in cases where the competent authority has acted illegally in registering workers' organizations, or in issuing the "acknowledgment" regarding trade union elections. According to section 83 of the Federal Act respecting administrative procedures,
   • The parties affected by acts and resolutions of the administrative authorities which terminate an administrative procedure, adjourn proceedings before a given authority, or definitively resolve a particular case, shall be entitled to apply for a review or to apply the appropriate legal remedies available.
2. 366. The Government explains that in the case brought by the complainant, the registering authority (the General Directorate for the Registration of Associations of the Labour and Social Security Secretariat) is an administrative body which reviews its own decisions and rulings, and such reviews must take place within 15 days of any such decision taking effect; a final ruling is given by the hierarchically superior body, which in this case is the Under-Secretary of Labour. If the parties concerned consider that their individual rights have been infringed, they may submit an application for protection (amparo) before a circuit labour tribunal.
3. 367. The Government points out that, in this particular case, no application was made to the General Directorate for the Registration of Associations challenging the "acknowledgement" issued to the officials of Section 35 of the STPRM, although in their written representation to the ILO they claim that such an application was made.
4. 368. In the light of these facts, the Government considers that, while the Federal Conciliation and Arbitration Board is competent to hear and resolve labour disputes that arise between workers, in accordance with the express provisions of section 604 of the Federal Labour Code, it does not have the authority to annul administrative decisions, and considers that the decision of the Federal Conciliation and Arbitration Board in the case in question was lawful.
5. 369. In summary, irrespective of the arguments adduced by the Federal Conciliation and Arbitration Board in support of finally setting aside the matter and those adduced by the Collegiate Tribunal in denying protection (amparo) to the applicants, the Government considers that the workers who do not agree with the election results failed to make use of the available legal remedies.

C. The Committee's conclusions

1. 370. The Committee observes that in the present case the complainant has alleged that legislation and trade union by-laws were violated in union elections held by the STPRM and that there are no administrative or judicial bodies competent to resolve internal trade union disputes, a fact that has been made clear by the outcome of appeals to the Federal Conciliation and Arbitration Board, the Collegiate Circuit Labour Tribunal and the labour administration authority.
2. 371. In this regard, the Committee notes that, according to the Government's statements: (1) there did exist means for bringing complaints before the administrative authority regarding the administrative decision to issue an acknowledgement regarding elections of trade union executive committees or elected union representatives, through an administrative review process which itself was subject to judicial review; (2) in this particular case, the workers who considered that their rights had been infringed (members of Section 35 of the STPRM) did not make use of the available legal remedies.
3. 372. The Committee draws attention to the fact that it is not competent to make recommendations on internal dissensions within a trade union organization, so long as the Government does not intervene in a manner that could affect the exercise of trade union rights and the normal functioning of an organization (see Digest of decisions and principles of the Freedom of Association Committee, 1996, para. 963). Under these circumstances, noting that the allegations refer to events that occurred in late 1997 and early 1998, and that the Government has indicated the appropriate legal remedies, which were not used in this case, the Committee considers that this case does not call for further examination.