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Allegations: The complainant organization alleges the refusal of a local
conciliation and arbitration board to register a change in its executive board
- 464. The complaint is contained in two communications from the United
Trade Union of Workers of the Water Supply and Sewerage Network (SUTSAPA) dated 16 April
and 22 October 2015.
- 465. The Government sent its reply in two communications dated 26 May and
25 October 2016.
- 466. Mexico has ratified the Freedom of Association and Protection of the
Right to Organise Convention, 1948 (No. 87).
A. The complainant’s allegations
A. The complainant’s allegations- 467. In a communication dated 26 May 2015, the complainant organization
states that, on 1 October 2013, Mr Raúl Contreras Ramírez, Mr Luis Aguilar Domínguez and
Mr Miguel Avitia Sánchez, in their capacity as the workers’ representatives, convened an
extraordinary general assembly of SUTSAPA on 5 October 2013, which was attended by more
than 51 per cent of the trade union’s members. The complainant alleges that, in
exercising its legitimate right to freedom of association, it decided during the
extraordinary general assembly to remove the union’s entire leadership because a number
of its officers had allegedly sexually harassed union members and contravened its
statutes.
- 468. The complainant states that, during the extraordinary general
assembly, Mr Adin Corzo Hernández was elected General Secretary of SUTSAPA and that, on
10 October 2013, the new executive board filed an application with the Chairperson of
the Local Conciliation and Arbitration Board (JLCA) in the State of Chiapas to “take
note of” (register) the change in officers, in accordance with article 377 of the
Federal Labour Act. On 18 October 2013, the members of the new executive board met with
the managing director of the enterprise to inform him of the change in executive board
and request him to cease all communications with the former executive board.
- 469. The complainant reports that, on 5 December 2013, the new General
Secretary of SUTSAPA requested the JLCA to register the change in executive board with
immediate effect. It further states that, given the failure of the JLCA to do so, the
executive board asked the Governor of the State of Chiapas to intervene. The Governor,
in a letter dated 16 January 2014, informed the new members of the union’s executive
board that their request had been forwarded to the Ministry of Labour of the State of
Chiapas and that it would be dealt with as soon as possible.
- 470. The complainant adds that, on 9 December 2013, the Chairperson of
the JLCA refused to register the change in executive board because, under article 365,
section IV, of the Federal Labour Act, the union must provide a certified copy of the
minutes of the assembly at which the executive board was elected – certified by the
general secretary, organization secretary and minutes secretary – and that the committee
making the application failed to provide this. It was also refused on the grounds that
the agenda included in the convocation to the extraordinary general assembly made no
mention of the change in executive board, which is required under article 19 of the
union’s statutes, and that the procedure set forth in article 34 of the statutes was not
followed.
- 471. With regard to the refusal to register the change in executive
board, the complainant states that: (i) in refusing to register the change in executive
board on the grounds of non-compliance with the union’s statutes, the JLCA exceeded its
authority, since, according to the Committee on Freedom of Association’s guidelines, the
registration of trade union representatives should take place automatically when
reported by the trade union, and should be contested only at the request of the members
of the trade union in question, hence it was not up to the JLCA to verify the
own-initiative procedure; (ii) the trade union followed the procedure set forth in the
statutes, given that, according to article 11, the removal and resignation from trade
union office should be dealt with in extraordinary general assemblies; (iii) in a change
of officers on 28 January 2012, despite the fact that this change was made in an
ordinary general assembly and that on that occasion there was a failure to comply with
the statutes, the JLCA did not oppose the appointments; (iv) according to articles 9 and
17 of the statutes, the general assembly is the trade union’s highest decision-making
body and enjoys trade union autonomy, hence any decision adopted during ordinary and
extraordinary general assemblies is irrevocable and the general assembly may disregard
the provisions of the statutes; (v) the JLCA was wrong to refuse the application for
registration on the grounds that uncertified copies were attached to the application,
instead of certified copies, and to claim that these were of no value as evidence,
since, according to the criteria established by the Committee on Freedom of Association,
the Chairperson of the JLCA only has the authority to register, and not to verify
evidence; and (vi) the application for registration was filed with the JLCA on 10
October 2013 and this authority refused the application on 9 December 2013, meaning that
the JLCA took more than 60 days to issue its decision and the principle of positiva
ficta (automatic approval) therefore applied.
- 472. The complainant also states that the officers elected lodged an
indirect appeal under the amparo procedure with the Sixth District Court in the State of
Chiapas against the decision issued by the Chairperson of the JLCA on 9 December 2013.
The appeal was rejected on 23 September 2014, as registration of the application for the
change in executive board was contingent on electoral procedures being verified. Thus,
the relevant authority had to verify whether the procedure followed in the election of
the new executive board had complied with the formal requirements of the union’s own
statutes.
- 473. The complainant considers that the 2011 constitutional reform with
respect to human rights and the Supreme Court of Justice’s decision in the Rosendo
Radilla Pacheco case established the requirement to recognize the human rights defined
by international sources of law as part of the Mexican constitutional system. Thus, in
making the registration contingent on complying with the formal requirements of the
statutes, the judge had made it a requirement to take into account the Committee on
Freedom of Association’s criteria, which would not otherwise have been applicable.
- 474. The complainant adds that an application for a judicial review of
the amparo decision handed down by the Sixth Court was filed with the Third Collegiate
Court, Twentieth Circuit. On 12 March 2015, the appeal was rejected on the grounds that
it was not possible to grant automatic recognition or registration to anyone requesting
it and producing any form of minutes, since checks must first be carried out to ensure
that any actions taken followed the procedures set forth in the union’s statutes and the
Federal Labour Act. The court also noted that, in order for the authority to register
automatically the changes requested after verification that requirements had been met,
trade unions must attach certified copies in duplicate of the minutes noting the changes
in trade union executive boards. This would enable the authority to check the procedure
followed and outcome recorded in the minutes against the rules freely adopted in the
statutes, in order to ascertain whether there had been compliance with those statutes.
Moreover, the vote and its outcome must adhere to the terms of the statutes freely
formulated by the members. In this respect, the complainant once again states that the
registration of trade union executive boards should take place automatically and that
the JLCA, having refused to register the changes, and the two courts, having upheld the
refusal, obstructed and limited the right to trade union activity in contravention of
Article 3 of Convention No. 87.
- 475. Lastly, the complainant alleges the deterioration in the conditions
of work of a number of union officials elected during the extraordinary general assembly
of 5 October 2013, in violation of their trade union immunity. In this connection, the
complainant states that: (i) Mr Jorge Alejandro Reyes López, sports secretary, after
working the night shift for five years, was transferred to the morning shift, resulting
in him receiving a wage reduction; (ii) Ms Esperanza Melgar Cruz, finance, statistics
and budget secretary, was transferred to another branch; and (iii) Mr Apolinar Jonapa
Morales, press and media secretary, was transferred both to another branch and to
another shift.
- 476. The complainant requests the Committee to ensure recognition of the
right of workers to freely elect their own representatives, which requires changes in
executive boards to be registered immediately. It also calls for a thorough
investigation to be ordered into the deterioration in the conditions of work of the
union officials mentioned above.
B. The Government’s reply
B. The Government’s reply- 477. In the communication received on 2 November 2016, the Government
conveys the information provided by the JLCA. In this regard, it states that, on 11
September 2015, Mr Jorge Iván Domínguez Molina, in his capacity as SUTSAPA general
secretary, submitted a letter to the JLCA requesting the registration of a new executive
board elected by majority vote in the extraordinary general assembly held on 29 August
2015.
- 478. With respect to the registration, it further states that, on 18
September 2015, the JLCA announced its agreement to the application for registration of
the change in executive board dated 29 August 2015, once the applicants had met the
requirements set out in articles 359 and 377, section II of the Federal Labour Act, as
well as the procedures established in articles 9 and 19 of the union’s statutes and
Article 3 of Convention No. 87. It also provides a list of the new executive board,
which will hold office from 29 August 2015 to 28 August 2018.
- 479. With regard to the complaint before the Committee, the Government
considers that there has been no violation of SUTSAPA’s right to freedom of association.
The Government therefore requests the Committee to take note of the information and to
close the case, considering that it does not call for further detailed examination.
C. The Committee’s conclusions
C. The Committee’s conclusions- 480. The Committee notes that in this case the complainant alleges, on
the one hand, the refusal by the JLCA to register the change in the SUTSAPA executive
board, in a decision dated 9 December 2013, and, on the other hand, the deterioration in
the conditions of work of three members of the executive board who were elected on that
occasion. These actions contravene the principles of freedom of association.
- 481. With respect first to the JLCA’s refusal to register the change in
executive board, owing to the failure to provide a certified copy of the minutes of the
assembly as required under the Federal Labour Act and to follow the procedures set forth
in SUTSAPA’s statutes, the Committee notes that the complainant states specifically
that: (i) the JLCA had exceeded its authority, given that the registration of officers
must take place automatically, and hence it was not up to the board either to verify
compliance with the union’s statutes or to ascertain whether the copies of the minutes
of the assembly provided were uncertified or certified; (ii) in accordance with
SUTSAPA’s statutes, the removal from trade union office should be dealt with in an
extraordinary general assembly, and (iii) according to the statutes, the general
assembly enjoys full trade union autonomy and can therefore disregard the formal aspects
of the statutes.
- 482. The Committee, while noting the information provided with respect to
the JLCA’s registration of the new SUTSAPA executive board elected during the
extraordinary general assembly in 2015, regrets that the Government has failed to
provide its observations on the JLCA’s decision of 9 December 2013 refusing to register
the change in executive board.
- 483. The Committee further notes that, according to the information
provided by the complainant, the JLCA’s decision refusing to register the change in
officers was challenged before the Sixth District Court in Chiapas, which rejected the
application for amparo, and that an application for a judicial review was filed with the
Third Collegiate Court, Twentieth Circuit, which upheld the decision to refuse
registration of the change in executive board.
- 484. In consideration of the above factors, the Committee notes that the
executive board elected on 5 October 2013 was not registered by the JLCA, owing to the
failure, on the one hand, to provide a certified copy of the minutes, as required under
article 365, section IV of the Federal Labour Act, and, on the other hand, to comply
with articles 19 and 31 of SUTSAPA’s statutes, in particular the failure to include the
election of the new executive board on the agenda of the extraordinary general
assembly.
- 485. With regard to the JLCA’s insistence on compliance with the legal
requirement to provide certified copies of the minutes of the extraordinary general
assembly at which the change in officers was made and in accordance with the procedures
established in the trade union bylaws, the Committee emphasizes that free election of
trade union officials is not at variance with the fulfilment of certain formal
requirements for the registration of trade union organizations and their officers,
provided that such requirements are reasonable, and that, if the body responsible for
registering the change in executive board considers that there are irregularities in the
documentation submitted, an opportunity should be provided for the organization to
rectify the irregularities in question [regarding this last point, see previous cases:
334th Report, Case No. 2282, para. 638; 337th Report, Case No. 2346, para. 1056; and
340th Report, Case No. 2393, para. 1059]. The Committee notes that a new executive board
was registered in 2015, therefore it will not pursue the examination of this
allegation.
- 486. As for the issue raised by the JLCA and the courts concerning the
complainant organization’s non-compliance with the statutes, the Committee considers it
important to recall that no violation of the principles of freedom of association is
involved where the legislation contains certain rules intended to promote democratic
principles within trade union organizations or to ensure that the electoral procedure is
conducted in a normal manner and with due respect for the rights of members in order to
avoid any dispute as to the election results [see Digest of decisions and principles of
the Freedom of Association Committee, fifth (revised) edition, 2006, para. 399]. The
Committee notes that, in this case, the failure to include the vote on the executive
board on the agenda of the extraordinary general assembly, in addition to negatively
affecting the governance of the trade union, could have had an effect on the level of
participation of members in that assembly, and consequently on their final decision.
Given these circumstances and, as the aim of monitoring compliance with the union’s
statutes appeared to be to ensure the democratic functioning of the union, the Committee
considers that no violations of the principles of freedom of association are involved,
and therefore will not pursue the examination of this allegation.
- 487. With regard to the allegations related to a deterioration in working
conditions, in particular transfers and the unilateral change in the work schedules of
three union representatives elected on 5 October 2013the Committee trusts that the
Government will ensure that these workers will not be disadvantaged for trade unions
activities.
The Committee’s recommendation
The Committee’s recommendation- 488. In the light of its foregoing conclusions, the Committee invites the
Governing Body to decide that this case does not call for further examination.