Effect given to the recommendations of the committee and the Governing Body - Report No 354, June 2009

Effect given to the recommendations of the Committee and the Governing Body

1. 149. At its March 2008 session, the Committee made the following recommendations [see 349th Report, para. 989]:
   • (a) The Committee requests the Government to take measures to ensure that the competent local authorities grant without delay the registration of SETEP irrespective of its greater or lesser representativeness, and to amend the legislation of Puebla State such that it does not impose as a condition on state workers the non-existence of a representative trade union in order to be able to register a trade union.
   • (b) The Committee requests the Government to keep it informed in this respect.
2. 150. In its communication of 1 December 2008, the Government states that the Puebla State Arbitration Court indicated that it was legally impossible to grant trade union registration to the Puebla State Independent Union of Education Workers (SETEP), given that the labour case from which the complaint arose was completely closed and shelved, without any possibility of legal recourse, in accordance with Mexican legislation, and for this reason it is considered to be a matter of res judicata. Notwithstanding the abovementioned ruling, the trade union is fully entitled to submit a new registration application. With regard to the Committee’s request to amend the legislation of Puebla State, in other words to modify the State’s labour legislation in articles 58–73 of the State Public Service Workers Act, the Government states that the Puebla State Arbitration Court lacks the authority to carry out such a request, as this lies with the legislative power of the State. This is because the Political Constitution of the United Mexican States enshrines the principle of the separation of powers, which is one of the underpinnings and characteristics of the whole democratic system. This principle seeks to defend human freedoms through the proper distribution of state functions.
3. 151. Accordingly – states the Government – the power of the Federation of Mexico is divided for the purposes of its exercise into the legislative, executive and judicial branches, which, in order to carry out their functions, enjoy full autonomy and independence in their form of organization and action, complementing each other to ensure the proper functioning of the State.
4. 152. The Committee notes this information and that there is no longer any possibility for legal recourse in this case, as the ruling has acquired the force of res judicata. The Committee regrets that the judicial authority has not taken into account the principles of Convention No. 87 relating to the freedom to establish trade union organizations. The Committee refers to its previous conclusions, which are reproduced below [see 349th Report, para. 987]:
   • With regard to the substance, the Committee observes that the principal reasons for not granting registration lay in the previous judicial appeals, in application of article 62, paragraph V, of the Puebla State Public Service Workers Act, whereby registration requires having the majority of workers in the state and there not being another trade union organization (“it must be the sole trade union association”). In this respect, observing that the new committee of the complainant trade union continues to seek registration, the Committee wishes to emphasize that this provision is in flagrant violation of Convention No. 87, Article 2 of which enshrines the right of all workers to form such organizations as they deem appropriate. The Committee also recalls that a provision authorizing the refusal of an application for registration if another union, already registered, is sufficiently representative of the interests which the union seeking registration proposes to defend, means that, in certain cases, workers may be denied the right to join the organization of their own choosing, contrary to the principles of freedom of association [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 328].
5. 153. The Committee repeats its previous recommendation to amend the legislation of Puebla State such that it does not impose as a condition on state workers the non-existence of a representative trade union in order to be able to register a trade union. The Committee requests the Government to make these conclusions known to the competent authorities on legal matters in the State of Puebla and firmly expects that the legislation will be amended to bring it into line with Convention No. 87.