Rapport définitif - Rapport No. 342, Juin 2006

822. The complaint is contained in a communication from the Trade Union of Metro Workers (ASTM) dated 16 August 2005. The Government sent its observations in a communication dated 24 January 2006.

1. 823. Mexico has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Workers’ Representatives Convention, 1971 (No. 135), but has not ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 824. In its communication dated 16 August 2005, the Trade Union of Metro Workers (ASTM) explains that it has legal personality and operates within the Public Transport System created by a presidential decree on 19 April 1967 to work as a decentralized public authority in the federal district and provide the public transport service known as the “Metro”, using trains on underground and overground lines in the federal district, capital of Mexico.
2. 825. The ASTM alleges that the Public Transport System has obstructed its union activities, hinders communication with workers, intimidates workers in order to deter them from having any dealings with or joining the ASTM; that it refuses to meet with its officials to deal with and resolve the various employment problems of members; and that workers have even been threatened with dismissal for continued participation with ASTM.
3. 826. The ASTM adds that despite the fact that the Public Transport System has authorized union “commissions” (union leave), with full pay and without affecting their contributions, for workers representing the ASTM, such as Mr. José Antonio Rojas Herrera, Mr. Arturo Alvarez Gómez, Mr. Eduardo Ortiz Cintora and Mr. Leonel Cataño Rosas, it currently, unilaterally, disavows the agreement to maintain this paid union leave for the current ASTM executive committee. The Public Transport System refuses to provide facilities to allow ASTM officials to carry on their duties efficiently, despite the fact that the enterprise has more than 500 workplaces where it can appoint union members to provide their services, more than 300 worksites several kilometres apart, and various workshops for the operation and maintenance of the trains that run on the Mexico City metro.
4. 827. The ASTM considers that by allowing this anti-union behaviour by the Public Transport System, the Government has violated the provisions of Conventions Nos. 87 and 135.
5. B. The Government’s reply
6. 828. In its communication dated 24 January 2006, the Government states that the Committee on Freedom of Association examines communications regarding violations of the principle of freedom of association enshrined in ILO Convention No. 87. This principle entails the right, freely exercised, of workers and employers, without distinction, to organize for furthering and defending their interests [see Summaries of international labour standards, second (revised) edition, 1990, p. 5]. It should be noted that nothing alleged in the communication presented by the Trade Union of Metro Workers (ASTM) constitutes the supposed non-compliance by the Government of Mexico with the principle of freedom of association and the right to organize laid down in that Convention. At no point does the ASTM indicate that it has been prevented from freely exercising its right to establish itself with its own legal personality and assets in order to defend the interests of its members, in the manner and on the terms that it deems necessary, and it has not been prevented from exercising its right to formulate by-laws and regulations, electing representatives freely, organizing its administration and activities or drawing up a programme of action. Nor does it state that the union has encountered obstacles to the formation of federations and confederations or to joining them. For these reasons, the Government of Mexico has not at any time violated the provisions of ILO Convention No. 87. The Government draws the attention of the Committee on Freedom of Association to the fact that the allegations made by the ASTM refer to aspects regarding the right to collective bargaining as laid down in the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), which Mexico has not ratified.
7. 829. The Government recalls that the obligation to recognize the principle of freedom of association applies to member States by virtue of their adherence to the Constitution of the International Labour Organization, as reflected in the Handbook of procedures relating to international labour Conventions and Recommendations (paragraph 79). Therefore, for the Committee on Freedom of Association to be able to examine a complaint, the alleged violation of the principle of freedom of association must derive from acts committed by the Government. The present communication refers to the Public Transport System – a decentralized body within the public administration of the federal district – but the acts imputed to it relate to aspects of labour relations between the ASTM, in its capacity as a trade union, and the Public Transport System, in its capacity as an employer, and not to its actions as an authority.
8. 830. Nevertheless, with a view to contributing in good faith to the work of the Committee on Freedom of Association, the Government states the following:
9. (1) Labour relations between the Metro Public Transport System and its workers are governed by the federal Act concerning state employees.
10. (2) The general working conditions fix the intensity and quality of work; measures that need to be adopted to prevent occupational risks; disciplinary procedures and their method of application; the dates and the conditions under which workers undergo preliminary and periodic medical examinations; unhealthy and hazardous work that must not be undertaken by minors, and the protection given to pregnant workers; and other rules that aim to achieve better safety and efficiency at work.
11. (3) The Metro Public Transport System has two trade unions: the ASTM and the National Union of Public Transport System Workers.
12. (4) On the basis of the principle of majority representation, the Metro Public Transport System has agreed general working conditions with the National Union of Public Transport System Workers, because it is the trade union representing the majority of the unionized workers this area.
13. 831. The Government adds, with regard to the allegations made by the ASTM, that the Metro Public Transport System has made the following comments:
14. – Regarding the allegation that the ASTM reports that the Metro Public Transport System has hindered its communication with workers and has threatened workers to make them leave the union or deter them from joining it, the Metro Public Transport System firmly denies this report.
15. – Regarding the allegations that the ASTM alleges that the Metro Public Transport System has refused to meet with its executive committee to deal with the work-related problems of its members; that they have been threatened with dismissal for continuing their trade union activity; and that the agreement authorizing union leave with full pay has been unilaterally disavowed, the Metro Public Transport System firmly denies these allegations. In addition, it reports that it does not have a record of the people who, the complainant organization indicates, are on union “commissions” (the former term for union leave).
16. 832. In conclusion, the Government of Mexico considers that it has not infringed the provisions of ILO Convention No. 87 because the ASTM at no point states that the Government of Mexico has prevented it from freely exercising the rights established in this Convention. In addition, the ASTM did not act in accordance with the federal Act concerning state employees, which provides the necessary mechanisms for recourse to jurisdictional bodies with a view to ensuring respect for and compliance with the rights and obligations that are due to them by law or contract, so that the State guarantees that conflicts arising in that regard will be settled in accordance with the law.

C. The Committee’s conclusions

1. 833. The Committee notes that, the complainant organization alleges that the Government has violated Conventions Nos. 87 and 98 by allowing the Public Transport System: (1) to hinder communication with workers and intimidate workers in order to deter them from having any dealings with or joining the complainant organization, to refuse to meet with officials from the complainant organization to resolve the problems of members and to threaten to dismiss the workers who continue participating in trade union activity; and (2) to have refused union leave with full pay to four (named) officials of the complainant organization, unilaterally disavowing an agreement to maintain this leave.
2. 834. The Committee notes the statements of the Government to the effect that: (1) the complainant organization has at no point stated that it has been prevented from exercising the rights laid down in Convention No. 87; (2) the allegations refer to aspects of Convention No. 98, which Mexico has not ratified; (3) the obligation to recognize the principle of freedom of association applies to member States by virtue of their adherence to the Constitution of the ILO, and that for the Committee on Freedom of Association to be able to examine a complaint, the alleged violation of the principle of freedom of association must derive from acts committed by the Government and not, as in this case, from the actions of a decentralized body in the public administration of the federal district, such as the Public Transport System, in its capacity as employer. The Committee recalls in this regard that the facts imputable to individuals involve the responsibility of the State because of its obligation of due diligence and its duty to prevent violations of human rights [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 19], that this principle also applies to all state authorities [see 340th Report, Case No. 2393 (Mexico), para. 28], and that the Committee’s procedure can be set in motion in relation to States that have not ratified Conventions Nos. 87 and/or 98.
3. 835. The Committee notes that, in response to the allegations, the Government states that: (1) the Public Transport System specifically and categorically denies each allegation; (2) the complainant organization did not appeal to the judicial authority to enforce the rights that had supposedly been violated, despite the fact that the federal Act concerning state employees provides the necessary mechanisms; (3) in the Public Transport System the conditions of work have been agreed with the majority trade union (the National Union of Public Transport Workers), to which the majority of unionized workers belong; and (4) the Public Transport System does not have a record of the people that the complaint lists as being entitled to union leave.
4. 836. Taking into account this information, which absolutely contradicts the allegations, and noting: (1) that the complainant organization has submitted very general allegations and, in particular, has not specified to date the circumstances or identified the victims of the alleged anti-union acts or of the employer’s refusal to meet with union officials, and has not provided a copy of the supposed agreement on union leave to which it refers; and (2) that the complainant organization has not provided any additional information, evidence or documents to support its allegations, despite having been invited to do so, the Committee will not pursue its investigation of this case.