Effect given to the recommendations of the committee and the Governing Body - Report No 382, June 2017

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

1. 118. The Committee last examined the substance of this case at its October 2014 meeting [see 373rd Report of the Committee, para. 48]. The Committee noted with interest that the Government had held meetings with national and international trade union organizations, in which various issues on the labour agenda had been addressed, including the recommendations made by the Committee in relation to this case in its last report, and that a technical assistance agreement with the ILO was being developed with a view to undertaking a technical review of the new legislation. The Committee requested the Government to keep it informed in this regard.
2. 119. In a communication dated 3 June 2016, IndustriALL Global Union (hereinafter IndustriALL, previously the International Metalworkers’ Federation), one of the complainants, submitted additional information in which it alleges that: (i) consultation and social dialogue meetings were not held with all the complainants – the Government merely held bilateral meetings with some of the parties – and the matter of protection agreements and possible solutions to the problem were only discussed superficially; these were primarily meetings held between the Government and the National Union of Workers (UNT), which sought to resolve specific problems and not the underlying problem of protection agreements; (ii) the complainants were not informed about ILO technical assistance to review and adjust the labour law reform; (iii) the use of arbitrary and physical violence against workers fighting to exercise their rights to freedom of association continues; and (iv) in practice no concrete measures have been forthcoming to eliminate the widespread system of protection agreements, and new employer protection agreements are still being signed in all sectors.
3. 120. In the same communication, IndustriALL provides information on specific cases involving the use of protection agreements:
   • (a) Honda Mexico United Workers’ Union (STUHM). IndustriALL recalls that an initial protection agreement was signed between the company and the Union of Workers in the Vehicle Manufacturing and Assembly Industry (SETEAMI) before the start-up of operations; that, prior to this situation, workers formed a union in the El Salto, Jalisco, plant, establishing the STUHM in May 2010; and that, despite delays in proceedings, calls to cancel the union’s registration and threats by the protection union, the STUHM proceeded with its legal action to seek title to the collective agreement. IndustriALL alleges that: (i) on 15 October 2015, the Federal Conciliation and Arbitration Board (Junta Federal de Conciliación y Arbitraje) ordered a vote recount in the company, but that this exercise had been plagued by irregularities – the voter list contained irregularities, admittance to the premises was denied to the team of national and international observers, union representatives and workers were threatened, voters were isolated from the rest of the plant and surrounded by security staff; (ii) although the STUHM reported these facts to the Federal Conciliation and Arbitration Board, the latter twice issued decisions disregarding the irregularities; and (iii) a conflict of interest arose in that the same person acted both as the SETEAMI representative and as coordinator for the advisers to the President of the Federal Conciliation and Arbitration Board during the legal action to seek title to the collective agreement.
   • (b) Commercial, Office, Retail, Similar and Allied Workers’ Union (STRACC). IndustriALL alleges that: (i) petrol station workers in Mexico City subject to protection agreements receive no wages, are not covered by social security or entitled to benefits, and are required to pay fees to their employers to be allowed to work in the petrol stations in exchange for tips received from customers; (ii) in workplaces where the STRACC has gained title to the collective agreement, the situation has changed. However, in two of the petrol stations where the STRACC is titleholder of the collective agreement, the workers have been subjected to threats by company representatives and members of the protection union; (iii) several workers from different petrol stations have approached the STRACC to seek protection. The companies are reportedly obliging workers to resign from the union, hiring new staff who are unpaid and receive no social benefits, and signing them up to the protection union through third-party companies; (iv) STRACC union officials, representatives and members have been threatened, beaten, kidnapped and illegally detained on false accusations by the employers in collusion with the local and Federal Government; and (v) they point out that in the legal action to seek title to the collective agreement initiated on 3 June 2014 by the STRACC against the Union of Employers and Workers in the Federal District General Trade Sector and the company Super Servicio Coapa, the vote recount did not take place until 31 August 2015, due to a series of irregularities, and that the process has not yet been completed, with the STRACC consequently fearing that once the legal action is concluded the petrol station will be left with no unionized workers.
   • (c) National Union of Petroleum Technicians and Professionals (UNTyPP). IndustriAll alleges that: (i) Petróleos Mexicanos (hereinafter the oil company) signed a protection agreement with the Petroleum Workers Union of Mexico (STPRM); (ii) the abuses and illegal acts in which the Government has been involved, to the detriment of the oil company workers and workers hired by third-party companies, have been denounced on numerous occasions; (iii) a recent example is the accident that occurred on 20 April 2016 at the Pajaritos plant, in Veracruz state, which was formerly owned by the oil company and is currently owned by another company. More than 30 workers died in the accident and others were injured because of the lack of safety measures, training and equipment and the absence of a trade union organization to monitor compliance with the law in that area – the UNTyPP noted that in this particular case the employer company could not be identified due to the triangulation of labour relations; and (iv) similar cases are reportedly arising throughout the oil and electricity sectors, where protection unions are said to be removing social and financial protections.
4. 121. IndustriALL further alleges that the Government has encouraged protection agreements and that this is evidenced by the signing and deposit of new protection agreements in car manufacturing companies before hiring workers or constructing the plant. In this regard, IndustriALL alleges that: (i) in July 2014, BMW (hereinafter the first car manufacturer) announced the creation of its new plant in San Luis Potosí, which will begin operations in 2019. Also in July 2014 (when the new plant was still at the project stage), a protection agreement signed by the Mexican National Automotive Industry, Similar and Allied Workers’ Union was deposited with the office of the Ministry of Labour and Social Security – IndustriALL emphasizes that the Secretary-General of the union in question had reportedly concluded 26 similar collective agreements and claimed to be negotiating an agreement to cover the workers of the Goodyear tyre factory, whose construction had scarcely begun; and (ii) in August 2014, the KIA motor company (hereinafter the second car manufacturer) announced the construction of a car production plant in Nuevo León. Again in August, the protection agreement that reportedly applies in the plant, signed by the Mexican National Automotive Industry, Similar and Allied Workers’ Union, was deposited. Moreover, IndustriALL alleges that statements made by the Government in international forums to the effect that strikes have not taken place in Mexico for over two years are false and are indicative of attempts to eliminate independent unions.
5. 122. In communications dated 15 November 2016 and 9 February 2017, the Government provided information as part of the follow-up to the Committee’s recommendations. The Government states that: (i) in preparation for the technical assistance agreement with the ILO, on 21 October 2015, the Ministry of Labour and Social Security requested in writing the opinions of the main workers’ and employers’ organizations, although only the Revolutionary Confederation of Workers and Peasants (CROC) sent its observations; (ii) the Minister of Labour and Social Security met with the Secretary-General of the International Trade Union Confederation (ITUC) twice – on one occasion the latter was accompanied by the Assistant Secretary-General of IndustriaALL Global Union and the Secretary-General of the Trade Union Confederation of Workers of the Americas (CSA). During these meetings, discussions took place on the importance of mediation and conciliation, the requirement for conciliation and arbitration boards to make collective agreements public, the employer’s obligation to disseminate collective agreements in their entirety, the removal of the “exclusion clause” and the ratification of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). The Government further states that: (i) in February 2013, the National Conference of Labour Ministers (CONASETRA) was created and, at their meeting in February 2016, those responsible for labour policy in the states and in the federation committed themselves to promoting a national agenda on labour justice, with a view to increasing the use of technologies to facilitate the transparency of processes, promoting reforms on procedural fraud, reviewing working conditions and staff training at national level, discussing the construction of a national IT platform and strengthening tripartism; (ii) in 2016, during the National Conference of Conciliation and Arbitration Boards (CONAJUNTAS), a permanent forum where labour courts explore, define and adopt agreements, the conciliation and arbitration boards committed themselves to joining the process to discuss, analyse and define actions for the thorough review of the labour justice system; (iii) the Federal Conciliation and Arbitration Board and the Local Conciliation and Arbitration Boards have signed coordination agreements facilitating their joint communication; (iv) the Federal Government has emphasized the importance of dialogue, conciliation and understanding, which has resulted in more than 29 consecutive months without strikes in the federal jurisdiction; (v) the reform of the Federal Labour Act led to the repeal of the second paragraph of section 395 of the Act, removing the “exclusion clause”; and (vi) with respect to the lack of impartiality of the conciliation and arbitration boards and the excessive length of proceedings, the Government indicates that the inclusion of section 391bis in the Act guarantees workers the right to information and transparency, since this provision obliges the authority to make information on collective agreements public. This would be complemented by section 78 of the General Act on transparency and access to public information, which requires administrative and judicial labour authorities to publish and update information on trade union registration and collective agreements.
6. 123. The Government also reported that, on 28 April 2016, the President of the Republic submitted a legislative proposal to the Senate to amend and add articles 107 and 123 of the Constitution. This proposal was unanimously approved on 13 October 2016 by the full Senate and on 4 November by the Chamber of Deputies. The initiative will transfer the administration of labour justice to the judiciary, handing over responsibility for the settlement of labour disputes to the labour courts. This reform will establish a decentralized federal conciliation body with administrative and budgetary autonomy, a legal personality, its own resources, and full technical, operational, budgetary, decision-making and administrative independence. It will also guarantee workers personal, free and secret ballots in the election of their union leaders, the settlement of disputes between unions and the right to request the conclusion of a collective agreement.
7. 124. Furthermore, the Government sent its observations on the additional information submitted by IndustriALL. In this connection, the Government states that: (i) the vast majority of issues raised by IndustriALL were also submitted to the Committee of Experts on the Application of Conventions and Recommendations (CEACR), through the regular supervisory mechanism established by articles 22 and 23 of the ILO Constitution, and discussed by the Conference Committee on the Application of Standards (CAS) in 2015 and 2016; (ii) it does not consider it appropriate or efficient that the issues raised by IndustriALL between 2009 and 2010 have also been submitted to the CEACR, resulting in double scrutiny, a lack of adequate follow-up and the Government having to submit information on the same matters three times; and (iii) the Government requests the Committee to conclude case No. 2694 and to continue to follow up on the issues raised by the complainant with regard to the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). The Government adds that, in relation to legislative measures to strengthen protection against anti-union practices, the Government notes that progress in these matters was reported to the CEACR in May 2016.
8. 125. As for the information provided by IndustriALL on specific cases, the Government maintains that:
   • (a) With regard to the STUHM, the information provided contains no fresh allegations. This case was transmitted to the CEACR in August and September 2015 under article 23 of the ILO Constitution by the National Trade Union of Workers in the Iron and Steel Industry, Derivatives, Similar and Related Products of the Mexican Republic (SNTIHA) and the ITUC respectively. The Government has already responded to these allegations through communications sent to the CEACR.
   • (b) Concerning the STRACC, although the case was included in an IndustriALL study for the CEACR in September 2016 with regard to article 23 of the Constitution, the CEACR has been considering it since 2014, when it was submitted by the ITUC. The Government has also provided information in the report on Convention No. 87.
   • (c) Regarding the UNTyPP, IndustriALL and the SNTHIA raised this matter with the CEACR and the Government submitted its comments to that committee in July 2016.
9. 126. With respect to the cases that were identified by the complainants as new protection agreements, the Government states that they were submitted to other supervisory bodies. In this regard, it indicates that: (i) concerning the first car manufacturer, the matter was referred to the CEACR in August 2015 with regard to the application of Convention No. 87, having been submitted by IndustriALL and the SNTIHA, and the Government’s comments to the observations of these trade union organizations were submitted to the CEACR in May and July 2016; and (ii) the situation of the second car manufacturer was also raised with the CEACR by IndustriALL in September 2016 with regard to the application of Convention No. 87, and the Government will address these arguments with the CEACR.
10. 127. With regard to the allegations concerning strikes, the Government states: (i) with regard to the Workers’ Union of the Mexican Institute of Water Technology, that the matter has been under consideration by the CEACR since August 2015; and (ii) in connection with the complaints presented by the Workers Union of the Institute of Higher Intermediate Education in the Federal District (SUTIEMS), the Michoacana University Professors Union (SPUM), the Union of Workers and Employees of the Autonomous University of Querétaro (STEUAQ), the Miners’ Union of Arcelor Mittal in Michoacán, the Union of the Food and Development Research Centre (SIATCIAD), and the Independent Workers’ Union of Nissan Mexico in Cuernavaca, that the follow-up will be reported to the CEACR.
11. 128. The Committee recalls that the complaint, presented in 2009, questions the industrial relations system in the country as a consequence of an alleged widespread use of employer protection collective agreements. The Committee notes that the Government points out that the issues raised by the complainants are being considered by other supervisory bodies – the CEACR and the CAS – and requests that the Committee refrain from proceeding with the follow-up of the case and that all outstanding issues be dealt with in the examination of the application of Convention No. 87 by the CEACR. The Committee notes that the various allegations concern, on the one hand, global issues that the Government claims to be addressing through legislative reforms and other general measures in the country and, on the other hand, specific allegations of violation of the principles of freedom of association and collective bargaining in several sectors and specific trade unions. The Committee also notes that Mexico has not ratified Convention No. 98.
12. 129. The Committee notes that the issues relating to legislative reforms following those taken in 2012 and other general measures to address the issue of protection agreements were the subject of review by the CEACR, which noted with interest that the reform proposals included initiatives to ensure union representativeness in the context of the registration of collective agreements. The Committee welcomes these developments and urges the Government to take further necessary steps, in consultation with the social partners, to find solutions to the problems posed by the phenomenon of protection unions and protection agreements. It requests the Government to continue providing information on any developments in this respect to the CEACR, to which the legislative aspects of the case are referred with regard to the application of Convention No. 87 and will therefore not pursue its examination of this aspect of this case.
13. 130. Moreover, as for the allegations concerning specific sectors or trade unions, the Committee, while noting the Government’s indication that it had brought information on a significant number of these to the attention of the CEACR, notes that the CEACR has focused on legislative matters in its supervision of the application of the Convention and did not examine the substance of these specific allegations. Indeed, in response to government observations that some of the allegations raised in communications from trade union organizations were already the subject of cases before the Committee, the CEACR indicated that it referred to the Committee’s conclusions and recommendations. In these circumstances, the Committee will proceed with the examination of this case in relation to the specific allegations of violations of the principles of freedom of association and collective bargaining arising from protection agreements and to the issues concerning anti union discrimination. The Committee therefore requests the Government to provide all supplementary and relevant up-to-date information on the various allegations made by IndustriALL of specific situations involving the use of protection agreements, so that the Committee will have access to all relevant information when it next examines the follow-up of this case.