Direct Request (CEACR) - adopted 1989, published 76th ILC session (1989)

The Committee notes the information supplied by the Government. In its previous direct request, it asked the Government (among other points) for precise information on the situation in law of the right to strike in banking institutions and it also referred to section 372, point II, of the Federal Labour Act, under which foreigners cannot form part of the executive body of trade unions.

With regard to the situation in law of the right to strike in banking institutions, the Government specifies that the Federal Act on state employees, which applies to public servants, governs the right to strike of bank employees. The terms of this Act impose restrictions on the right to strike which do not exist in subsection A, section 123, of the Constitution. Furthermore, the National Federation of Banking Unions observes that the legislation does not permit new terms of employment to be sought through the right to strike because, under the current terms of the Act, work can only be suspended legally when remuneration is withdrawn by the General Conditions of Service and only in this way would the legal requirement of a general and systematic violation of acquired rights be fulfilled.

In this connection, the Committee has pointed out that prohibitions or restrictions on the right to strike in the public service should be confined to public servants acting in their capacity as agents of the public authority or to services whose interruption would endanger the life, personal safety or health of the whole or part of the population. The Committee on Freedom of Association has also considered, for example, that, in particular, banks, teaching services and radio and television are not essential services in the strict sense of the term (see in this connection, the 221st Report, Case No. 1097 concerning Poland, paragraph 84).

The Committee therefore requests the Government to supply precise information on the means available to banking unions to defend their occupational interests and to state in which circumstances it would be possible for them to call a strike.

With regard to section 372, point II, of the Federal Labour Act, the Government states in its report that certain limitations and conditions are laid down by legislation concerning the legal situation of foreigners in relation to that of nationals. In the Government's opinion, Article 3 of the Convention provides that the public authorities shall refrain from any interference ... but that "refrain" should be understood to refer to the legal context, that is without prejudice to the powers and tasks with which the public authorities have been entrusted by the Congress of the Union of the United States of Mexico. Accordingly, if in these laws regulations are imposed upon foreigners so that they can undertake certain activities within the country, this is precisely because they are foreigners; but the Government considers that this does not prejudice the rights established in the Convention. In view of the above, there is no incompatibility between Article 3 of the Convention and section 372, point II, of the Federal Labour Act.

In this connection, the Committee has considered that greater flexibility should be given to the legislation in order to permit organisations to elect their leaders without interference and also to permit foreign workers to hold trade union office, at least after a reasonable period of residence in the host country. (See paragraph 160 of the 1983 General Survey of the Committee of Experts on Freedom of Association and Collective Bargaining.)

The Committee requests the Government to indicate in its next report the positive steps that have been taken to guarantee that effect is given to the Convention in this respect.