Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the Government’s report.

1. Trade union monopoly in state bodies imposed by the Federal Act on State Employees and the Constitution. The Committee recalls that for many years it has been commenting on the following provisions of the Federal Act on State Employees:

(i)    the prohibition of the coexistence of two or more unions in the same state body (sections 68, 71, 72 and 73);

(ii)    the prohibition of a trade unionist from leaving the union of which he or she has become a member (an exclusion clause under which the trade unionist loses his or her job by no longer being a member of the union) (section 69);

(iii)   the prohibition of re-election in trade unions (section 75);

(iv)   the prohibition of unions of public servants from joining trade union organizations of workers or rural workers (section 79);

(v)   the extension of the restrictions applicable to trade unions in general to the Single Federation of Unions of Workers in the Service of the State (section 84); and

(vi)   the imposition by law of the trade union monopoly of the National Federation of Banking Unions (section 23 of the Act issued under article 123(B)(XIIIbis) of the Constitution).

With regard to points (i), (iv), (v) and (vi), the Committee notes the Government’s indication that the right to organize in Mexico is set out in clause XVI of article 123 of the Constitution which establishes, without restriction whatsoever, the right of workers to associate, and that the spirit of the freedom to organize established in that provision is fully universal, based on the personal right of each worker to associate and the recognition of a collective right to the establishment of trade unions. The Committee nevertheless recalls that for many years it has been making comments on sections 68, 71, 72, 73, 79 and 84 of the Federal Act on State Employees and on section 23 of the Act issued under article 123(B)(XIIIbis) of the Constitution in view of the lack of compliance with the provisions of the Convention and it recalls that, in its previous observation, it noted that the Federal Conciliation and Arbitration Tribunal had granted registration to trade union organizations in departments in which there is another union and that the Supreme Court of Justice issued a jurisprudential ruling in 1999 (No. 43/1999) guaranteeing the exercise of the right to freedom of organization of workers in the service of the Mexican State as it found that the requirement of a single trade union for officials in each Government department violates the social guarantee of the freedom to organize of workers as established in article 123(B)(X) of the Constitution. The Government further indicates that the Federal Conciliation and Arbitration Tribunal applies this jurisprudential ruling in its decisions. Under these conditions, the Committee requests the Government to take the necessary measures to amend the legislative provisions concerned so as to bring them into full conformity with the Convention.

With regard to point (ii), relating to the exclusion clause, under the terms of which all workers lose their jobs if they leave the union, the Committee notes the Government’s indication that, in accordance with ruling No. 43/1999 of the Supreme Court of Justice, the Federal Conciliation and Arbitration Tribunal (TFCA) upheld the resignations of workers from membership of various trade unions and the applications for membership of others in relation to 19 unions. Under these conditions, the Committee requests the Government, in accordance with the practice followed by the TFCA, to take measures to amend section 69 of the Federal Act on State Employees.

In relation to point (iii), concerning the prohibition of re-election in trade unions, the Committee notes the Government’s repeated indication that the TFCA applies ruling No. CXVII/2000 of the Supreme Court of Justice, in accordance with which section 75 of the Federal Act on State Employees, which prohibits the re-election of union leaders, is in contravention of the principle of freedom of association set out in article 123 of the Constitution, and that the re-election of leaders in 34 unions has been noted. In this respect, the Committee requests the Government to keep it informed of any measure taken to amend section 75 of the Federal Act on State Employees, so as to bring it into conformity with the abovementioned ruling.

Finally, the Committee notes the Government’s indications concerning the Parliamentary initiatives submitted to Congress for the amendment, among others, of sections 68, 69, 71, 72, 73, 75, 79 and 84 referred to above. The Committee requests the Government to keep it informed of developments in the Parliamentary process relating to these legislative initiatives in the firm hope that all amendments of the Federal Act on State Employees will take into account the comments that it has been making for many years.

2. Prohibition upon foreign nationals from being members of trade union executive bodies (section 372(II) of the Federal Labour Act). In its previous observation, the Committee noted the establishment of the Central Decision-Making Forum for the reform of the Federal Labour Act, within which a set of draft reforms to the Federal Labour Act was formulated and submitted to the legislative authority as a legislative initiative on 12 December 2002. In this respect, the Committee notes the Government’s indication that this draft legislation was submitted to the Labour and Social Insurance Commission of the Chamber of Deputies for examination, analysis and opinion. The above Commission convened Parliamentary conferences in which coordinated work was undertaken by the two commissions of the Chamber of Deputies and the Senate. The Government indicates that the Bill contains the outcome of all the discussions and agreements reached by both employers and workers, and that the executive authorities facilitated the dialogue and promoted the agreements obtained. The Bill was converted into an overall reform with the agreement of the Plenary of Legislatures LVII and LIX and is currently undergoing bicameral examination. The Committee hopes that the Bill will amend section 372(II) referred to above and asks the Government to continue to keep it informed in its next report of developments in the Parliamentary process.

3. The limited right to strike of public officials who do not exercise authority in the name of the State. The Committee recalls that for many years it has been commenting on the following issues:

(i)    Workers, including those who are employed in public banks, are only able to exercise the right to strike in one or more agencies of the public authorities when there is a general and systematic violation of the rights set out in article 123(B) of the Constitution (which provides that workers shall have the right to associate in the defence of their common interests) (section 94(4) of the Federal Act on State Employees and section 5 of the Act on Banking and Credit issued under article 123(B)(XIIIbis) of the Constitution). The Committee notes the Government’s indication that the right to strike is not specifically recognized by the Convention, while emphasizing that it is duly acknowledged in the public service. It nevertheless notes that, in the particular case of bank employees, their functions are included among the category of essential services. In this respect, the Committee emphasizes that the prohibition of the right to strike in the public service should be limited to public servants exercising authority in the name of the State and to essential services (those the interruption of which would endanger the life, personal safety or health of the whole or part of the population), which do not include banking services. Under these conditions, the Committee once again urges the Government to take the necessary measures to amend the legislation in accordance with the provisions of the Convention. The Committee requests the Government to provide information in its next report on any measure adopted in this respect.

(ii)    The requirement of two-thirds of workers in the public body concerned to call a strike (section 99(II) of the Federal Act on State Employees). The Committee notes the Government’s indication that the suspension of the services of public servants could result in a generalized prejudice to citizens, for which reason the same rules should not be applied as to workers in general. In this respect, the Committee recalls that the ballot method, the quorum and the majority required should not be such that the exercise of the right to strike becomes very difficult, or even impossible in practice. Under these conditions, the Committee urges the Government to take the necessary measures to amend section 99(II) (for example, by requiring only a simple majority of the votes cast to call a strike). The Committee requests the Government to provide information in its next report on any measure adopted in this respect.

Requisitioning. In its last observation, the Committee also noted that various laws on the public services contain provisions relating to the requisitioning of staff in cases, among others, in which the national economy could be affected (section 66 of the Federal Telecommunications Act, section 56 of the Act regulating the railways, section 112 of the Act respecting general thoroughfares, section 25 of the Act respecting the national vehicle register, section 83 of the Civil Aviation Act, section 5 of the internal rules of the Secretariat for Communications and Transport and section 26 of the internal rules of the Federal Telecommunications Commission). The Committee notes the Government’s indication that the power of the federal Government to operate the necessary services in the event of a natural disaster, war, serious disturbance of public order or when preventing an imminent danger to national security, internal peace in the country or the national economy is only limited to cases in which such contingencies occur, with the result that when they do not happen the Government will not take action and there will therefore be no restriction on the right to strike of workers in the service of the State. The Committee recalls, as it has done in previous comments, that the reference to imminent danger to the national economy is too broad and that restrictions on the right to strike in circumstances in which the national economy may be affected could be contrary to the principles of the Convention and that the requisitioning of workers who are on strike could be abused where it is used as a means of settling labour disputes (see 1994 General Survey on freedom of association and collective bargaining, paragraph 163). The Committee therefore once again requests the Government to take measures to amend the above provisions and to provide information on this subject in its next report.