Informe provisional - Informe núm. 364, Junio 2012

1. 729. The complaint in this case was examined by the Committee at its meeting in March 2011, when it presented an interim report to the Governing Body [see 359th report, paras 727–903, approved by the Governing Body at its 310th Session (March 2011)].
2. 730. The Government presented new observations in communications dated 9 November 2011 and 6 March 2012.

A. Previous examination of the case

1. 731. In its previous examination of the case, the Committee made the following recommendations on matters still pending [see 359th Report, para. 903]:
   • (a) The Committee invites the Government to take measures to initiate a constructive dialogue with the workers’ organizations (including the five complainants) and employers’ organizations, on the application of the labour and trade union legislation. This dialogue should include: (1) the questions relating to the trade union protection clauses, “exclusion clauses”, declared unconstitutional by the Supreme Court which may give rise to certain situations contemplated in the complaint; (2) questions relating to the minimum representativeness of trade unions in order to bargain collectively; and (3) the allegations of the lack of impartiality of the conciliation and arbitration boards (JCAs) and the allegedly excessive length of its proceedings. The Committee requests the Government to inform it of the meetings held and the outcome of this dialogue.
   • (b) The Committee also requests the Government to reply specifically to the allegations and examples from the complainants concerning: (1) the public personalities including public authorities, which made statements concerning the reality of employer protection collective agreements and high number of these agreements; and (2) the specific cases of companies mentioned in paragraphs 796–799, including the allegations of deficient or partial functioning of the JCAs in relation to the exercise of the distinct trade union rights of the STRACC.
2. 732. Paragraphs 796–799 of the 359th Report of the Committee referred to in recommendation (b) above are reproduced below:
   • 796. The IMF updates the facts in three of the cases mentioned in their initial complaint of February 2009.
   • 797. With regard to the registration of the National Union of Petroleum Technicians and Professionals (UNTyPP), the IMF indicates the following:
     • – 18March 2008, the UNTYPP was formed in a meeting in which its constitution is approved and the executive committee were elected.
     • – 29 April 2008, the UNTYPP requested registration with the Directorate for registration of Associations in the Secretariat of Labour and Social Affairs (STPS): in order to comply with the Federal Labour Act, it produced the convocation and minutes of the constituent meeting of the trade union which recorded the will of the workers present to join the trade union and request its registration; membership list showing 260 members, duly authorized constitution, 260 membership forms and documentation showing them to be PEMEX workers.
     • – 6 June 2008, the STPS required the UNTYPP, among other things, to amend its constitution and produce the minutes of the meeting approving the amendments, prove the existence of PEMEX and that the members were employed by that company.
     • – 11 June 2008, Oscar del Cueto Charles, Public Relations Secretary of the NTYPP, was dismissed for trade union activism.
     • – 21 August 2008, for the second time, the STPS required the UNTYPP, among other things, to amend the constitution and produce the minutes of the meeting when the amendments were made, delete from the membership list those workers who did not produce original documents showing them to be PEMEX employees.
     • – 21 August 2008, Didier Marquina Cárdenas, General Secretary of the UNTYPP was summoned by Mr Marco Antonio Murillo Soberanis, PEMEX deputy human resources director, to the company offices in Mexico City, and pressured to withdraw the request for trade union registration, under threats that he should think of his future and that of his children.
     • – 16 October 2008, for the third time, the STPS required the UNTYPP to prove the wish of each member to belong to the trade union, to amend the constitution and produce the minutes of the meeting when the amendments were made, and to remove more members.
     • – 14 November 2008, PEMEX dismissed 14 members of the executive committee, and over 40 UNTYPP officials and members were violently ejected from their workplace by security personnel of that company and their personal belongings were confiscated.
     • – 18 November 2008, the UNTYPP requested the STPS to grant trade union registration as it had fulfilled all the requirements set out in the Federal Labour Act and over 60 days had elapsed without a decision being made in that regard.
     • – 19 November 2008, the STPS replied to the UNTYPP’s request of 18 November 2008 indicating that the requested registration was not receivable because it had replied making various observations and that the registration was under consideration.
     • – 19 November 2008, the father of Felipe Jaime Valencia Galindo, UNTYPP executive committee member, died because he was refused urgent medical treatment in the PEMEX HOSPITAL, because his son was a member of the UNTYPP.
     • – 20 November 2008, PEMEX summoned several dismissed workers and offered them reinstatement on condition that they renounced the UNTYPP, and several of them, who urgently needed medical treatment, signed a letter of renunciation of the UNTYPP.
     • – 25 November 2008, the UNTYPP requested the STPS to grant trade union registration as it had fulfilled all the requirements set out in the Federal Labour Act and over 60 days had elapsed without a decision being made in that regard and three days had passed since the request in question without any decision in that regard, in accordance with article 366 of the Federal Labour Act.
     • – 27 November 2008, the STPS requested the UNTYPP to clarify whether it was a company or sectoral trade union.
     • – 27 and 28 November 2008, PEMEX embarked on a campaign of threats in the workplaces to force active UNTYPP members to renounce the trade union, failing which they would be sacked.
     • – 27 November 2008, the STPS informed the UNTYPP that it had requested PEMEX to inform it of the functions of the UNTYPP members and to confirm the details provided by them in the membership list.
     • – 1 December 2008, the UNTYPP responded to the observation of the STPS of 27 November 2008 and requested registration in accordance with the provisions of article 366 of the Federal Labour Act.
     • – PEMEX stepped up the violence against UNTYPP members, increased the veiled or direct threats against them personally and against their families, medical services for members were cancelled, blackmailing them by providing medical care only if they renounced the trade union, and enforced retirement.
     • – 23 December 2009, the STPS refused registration of the UNTYPP on the grounds that it did not comply with the requirements of the Federal Labour Act, including that the number of members was less than 20.
     • – In reply to the refusal to register, several members confirmed to the STPS that they belonged to the UNTYPP, showing that there were more than 20.
     • – 12 January 2009, a claim for unfair dismissal of union members and members of the executive committee, on the grounds of their organizing as a trade union, was l4odged.
     • – 15 January 2009, the UNTYPP applied for amparo against the refusal to register by the Directorate for Registration of Associations.
     • – 2 July 2009, in reply to the application for amparo filed by the UNTYPP, the district primary judge for labour matters found that the registration was allowable, as the requirements of the Federal Labour Act had been fulfilled and ordered the STPS to register the UNTYPP.
     • – 16 July 2009, the STPS appealed the decision that ordered the registration of the UNTYPP.
     • – 30 November 2009, the 14th Labour Appeal Court found in favour and upheld the judgment that the UNTYPP should be granted registration.
     • – 21 December 2009, the STPS granted trade union registration to the UNTYPP and took note (toma§ de nota) of the national executive committee for the period 18 March 2008 to 17 March 2012.
     • – 23 December 2009, UNTYPP members and trade union representatives began to receive telephone calls threatening them with dismissal and physical violence if they did not renounce the trade union.
     • – 30 December 2009, the UNTYPP asked PEMEX for a meeting to start formal relations.
     • – January 2010, the UNTYPP launched a membership drive, visiting workplaces throughout the country.
     • – In reply to the UNTYPP’s membership drive, the company, through its security personnel and management, threatened workers who attended UNTYPP meetings with dismissal. Trade union representatives were threatened with physical violence and threats were made against their families, they were spied on and followed by strangers in cars.
     • – January 2010, managers at each workplace summoned UNTYPP members individually to their offices, they were detained by security personnel for a long time, while they were threatened with dismissal if they did not renounce the trade union, they were forced to sign letters which were supposedly personal but all had the same format and appointed the same lawyer to undertake the procedures mentioned in them. The first letter was a renunciation of the trade union and the second, a request to the Secretariat of Labour and Social Security to dissolve the UNTYPP. The JFCA received these documents and opened cases Nos 1/2010 to 55/2010 in Special Board Twelve of the JFCA.
     • – 18 January 2010, approximately 200 workers belonging to the UNTYPP were threatened with dismissal by PEMEX human resources management staff, supported by security personnel, to force them to sign the renunciation of the trade union and request for dissolution of the trade union. Three trade union members and officials were dismissed.
     • – 28 January 2010, Erasto Luis de la Cruz, Labour Secretary of the executive committee and five members of the sectional executive committee in the Antonio Dovalí Jaime Refinery were threatened with dismissal by the human resources manager and deputy manager of the refinery because they refused to sign letters renouncing the trade union.
     • – 15 February 2010, due to their refusal to sign letters of renunciation of the trade union, Erasto Luis de la Cruz, Labour Secretary of the executive committee and five members of the sectional executive committee in the Antonio Dovalí Jaime Refinery were dismissed.
     • – March and April 2010, a fierce onslaught was unleashed against our members and advisers, in particular against the General Secretary with repeated calls to his mobile phone with threats of violence against himself and his family.
     • – April 2010, trade unions launched a campaign of support for their fellow trade unionists with letters to the Mexican Government to cease the threats and attacks against them and demanding their reinstatement.
     • – May 2010, PEMEX called the members of the executive committee to supposed negotiations, asked them to stop the campaign of letters and offered to reinstate some members.
     • – End of May 2010, the executive committee agreed to stop the campaign in defence of the trade union on condition that the Government and PEMEX ended the repression of members and workers.
     • – June 2010, the repression of members and workers ended. The talks between PEMEX and the trade union continued.
     • – 16 July 2010, Didier Marquina Cárdenas and Francisco Ríos Piñeyro, General Secretary and Secretary of the organization, respectively, were reinstated, but their jobs were frozen.
   • 798. As regards the case of the bargaining rights of the Commercial, Office, Retail, Similar and Allied Workers’ Union (STRACC), the IMF indicates the following facts:
     • – 9 January 2003, the STRACC presented a claim for bargaining rights and requested the Federal District Conciliation and Arbitration Board (JCADF) to keep the details of workers belonging to the STRACC confidential, the said information to be supplied in a sealed envelope.
     • – February 2003, leaders of the movement in the workplace were dismissed, having been identified because the envelope containing their personal data had been broken into.
     • – No hearings are being held, as the JCADF did not notify the defendant trade union and company or they are held at irregular intervals, and other claims for bargaining rights were held, and a ballot was finally called on 20 August 2003.
     • – 20 August 2003, two hours before the ballot, the JCADF suspended it, awaiting a petition lodged by one of the trade unions (the confederation CTC) which also claimed bargaining rights. Thanks to this ruse, the workers belonging to the STRACC were identified.
     • – Having identified the STRACC members, the company dismissed three more officials and intensified threats and violence against the workers.
     • – 10 November 2003, another trade union appeared, also claiming bargaining rights in a hearing to request a ballot date to be set. Groups of thugs turned up and harassed STRACC members to make them drop their claim. The JCADF did not set a date for the ballot and despite the fact that it was witness to the assaults and had the legal means to prevent them, it did nothing.
     • – 8 December 2003, the JCADF allowed the claim for bargaining rights by the trade union which appeared at the hearing on 10 November 2003.
     • – Various hearings were called, and more trade unions presented claims for bargaining rights which were invariably allowed by the JCADF, thus a ballot could be held until the cumulative hearings for each claim had been completed.
     • – The JCA continued to set dates for hearings which were not held due to failure to notify all the claiming unions or deliberate errors in the JCADF agreements.
     • – 18 November 2005 was set by the JCADF for the ballot at the company’s sites, but it could not be held because thugs surrounded the sites and barred the entry of the JCADF official and the STRACC representatives, there were constant threats and aggression and a group of workers was abducted by the company to prevent them voting.
     • – Despite having the legal mechanisms to notify the defendant trade union and the repeated request by the STRACC representatives to use them, the JCA did not do so. The trade unions which also claimed bargaining rights are the CTM, CROM and CTC which have representatives in the JCADF.
     • – 15 January 2009, a hearing was held to hear the STRACC claim and a date was set for the ballot on 22 January 2009.
     • – 22 January 2009, the ballot was held and the JCADF used as the electoral list the one provided by the company without checking it, as required by law, and which contained persons who did not work for the refinery. The ballot takes place amid assaults by thugs without the JCADF taking any action to prevent it. Despite everything, the STRACC won the ballot.
     • – At the end of 2009, the JCA issued a final decision which recognized the STRACC as having bargaining rights under the collective agreement.
     • – In 2010, the parent company refused to reinstate the dismissed workers.
   • 799. As regards the case of Johnson Controls, Puebla, the IMF mentions the following facts:
     • – In the second half of 2005 and throughout most of 2006, working time was unilaterally increased in the dressmaking area to 12 hours per shift, the Christmas bonus and profit-related pay were reduced and replaced by a bonus of lower value.
     • – In the face of the systematic abuse and violation of their rights, the workers organized into a coalition which confronted the protection trade union claiming better conditions of work, participation on collective and wage bargaining and participation in the election of their representatives.
     • – In May 2007, under the Federal Labour Act, the revision of the collective agreement signed by the Commercial, Office, Retail, Similar and Allied Workers’ Union and the employees was due.
     • – On 4 June 2007, the workers’ coalition requested the company trade union to allow them to participate in the wage review, although not the collective agreement, and requested a copy of the collective agreement for information; the trade union replied that they should come to its offices for that purpose.
     • – In June 2007, due to the growing disagreement expressed by the workers’ coalition, the trade union initiated a campaign of harassment against any worker who expressed disagreement, hounding them and keeping production lines and villages under surveillance.
     • – In June 2007, seven members of the workers’ coalition were dismissed in application of the exclusion clause. The workers lodged a complaint of unfair dismissal in the JFCA.
     • – On 26 and 27 October 2007, 150 workers were dismissed without any defence or recourse for a legal settlement for the workers concerned by the protection trade union.
     • – In August 2008, after a process of surveillance of the workers’ coalition by the trade union and the company, 15 leaders were dismissed.
     • – In June 2008, 50 workers were dismissed. The company says that the reason was that they had enrolled in education.
     • – There was systematic direct physical aggression and threats against the workers, leaders and organizers.
     • – The company and the trade union refused to give a copy of the collective agreement to the workers, and those who requested it were dismissed and any attempt to organize detected was eliminated with the dismissal of the leaders.
     • – Johnson Controls contracted workers through various outsourcing firms, each of which had its respective trade union and CCPP.
     • – Due to the slowness and risks involved in requesting trade union registration, the workers’ coalition decided to file a claim for bargaining rights, presentation of which is pending.
     • – In 2010, workers and leaders of Johnson Controls and the coalition were attacked and threatened by men linked to the company trade union.
     • – On 29 May 2010, the coalition and workers of the Johnson Controls (Resurrección Area) Puebla, claimed the right to form their own trade union section and affiliate with a national democratic trade union, and went on strike for three days before negotiating an agreement with the company and the regional authorities.

B. The Government’s reply

1. 733. In its communication dated 9 November 2011 the Government states that it has made considerable efforts to comply with the Committee’s March 2011 recommendations by initiating a formal dialogue with workers and employers and continuing to compile information on the subject which it will shortly be submitting.
2. 734. In its communication dated 5 March 2012 referring to recommendation (a) of the Committee’s 359th Report on Case No. 2694, the Government states that the promotion and consolidation of dialogue with the sectors of production is a constant concern of the Government of Mexico, since it is one of the guiding principles of its policies and measures in the field of labour. The Secretariat of Labour and Social Security (STPS) promotes continuity dialogue with the country’s production sectors in order to exchange views on a variety of topics. In the case involving the complainant organizations especially, there is a respectful dialogue, notably with the National Union of Workers (UNT), and this dialogue was strengthened in April 2011 with the establishment of formal, regular meetings. Several recognized trade unions affiliated to the UNT have been taking part in this dialogue, including the Union of Telephone Operators of the Mexican Republic (STRM), the Union of Workers of the National Autonomous University (STUNAM), the Trade Union Association of Airline Pilots of Mexico (ASPA) and the National Union of Petroleum Technicians and Professionals (UNTyPP), among others.
3. 735. The Government states that meetings held to discuss the issues of freedom of association and the procedures of the conciliation and arbitration boards raised in the present case have been attended by some of the STPS’s senior officials. On 13 February 2012, for example, Ms Rosalinda Vélez Juárez, who is currently responsible for such matters, held a working meeting with the UNT’s Executive Committee headed by Federal Deputy Francisco Hernández Juárez, Captain Fernando Perfecto and Mr Agustín Rodríguez, senior officials of the STRM, ASPA and STUNAM, respectively. The Undersecretary for Labour of the STPS held three working meetings (on 18 January, 3 February and 2 March 2012) with Mr Sergio Beltrán Reyes, Secretary for Internal and External Affairs and Official Records, Mr Javier Zúñiga García, Secretary for Labour, Mr José Barajas Prado, Treasurer, and Mr Juan Linares Montúfar, Secretary for Political Affairs, all of them members of the national Executive Committee of the National Union of Miners, Metalworkers and Allied Workers of the Mexican Republic, to discuss a number of issues related to the complaint. Arrangements have also been made to meet Mr Benedicto Martínez Orozco, General Secretary of the Union of Metal, Steel, Iron, Allied and Similar Workers (STIMAHCA), who also acts as national coordinator for the Authentic Workers’ Front (FAT); the meeting was confirmed for 14 March 2012.
4. 736. The Government adds that social dialogue has also been extended to international trade union organizations. On 21 October 2011, for example, the then Secretary of Labour and Social Security, Mr Javier Lozano Alarcón, received a delegation of UNI Global Union led by Mr Larry Cohen, President of Communications Workers of America (CWA) of the United States, Ms Barb Dolan, Administrative Vice-President of the Communications, Energy and Paperworkers Union of Canada, Mr Marcus Courtney, Head of UNI Global Union’s telecommunications department, and Mr Francisco Hernández Juárez, Secretary General of the STRM, who is also President of the Executive Committee of UNT. An exchange was held on concerns raised by the international trade unions and on global and national labour issues. After a constructive dialogue with the international organizations, Mr Philip Jennings invited Mr Lozano to inaugurate the general assembly of UNI MEI (Global Union) held in Mexico City on 28 November 2011, at which it was stressed that economic competititivity and employment creation were compatible with full respect for decent work.
5. 737. With regard to the Committee’s recommendation (b) concerning the present case (“the Committee also requests the Government to reply specifically to the allegations and examples from the complainants concerning: (1) the public personalities including public authorities, which made statements concerning the reality of employer protection collective agreements and high number of these agreements; and (2) the specific cases of companies mentioned in paragraphs 796–799, including the allegations of deficient or partial functioning of the JCAs in relation to the exercise of the distinct trade union rights of the STRACC”), the Government refers to the relevant passages of the statements made by Mr Javier Lozano Alarcón.
   • – On 23 January 2009, in his closing speech to ASPA’s general assembly commemorating Mexican Pilots Emancipation Day, Mr Javier Lozano Alarcón stated:
     • I share in very large measure the views, comments and ideas just expressed by your General Secretary, Mr Dennis Lazarus. That is why it is important that, if we are all so concerned about subcontracting, outsourcing, simulation, puppet unions and protection agreements, we must tackle them together; and that is something we can and must do every day.
     • I also congratulate ASPA because it has really found a way of dealing with competition in the sector. The competition is fierce: first the crisis generated by the twin towers in 2001 and then in recent years the opening of low-cost airlines – as Dennis said, not always with fair working conditions, because now we are seeing that protection agreements, puppet unions and sometimes simulation are common practice. In this country we cannot allow ourselves the luxury of achieving low costs by trampling on workers’ rights and even simulating legal instruments as if they were genuinely legal. That is why there has to be transparency. That is why it is important that we all know which unions, which collective agreements, which executive committees we are talking about so that we can point to them and set matters straight. That is why our legislation has to be brought up to date, because when it was adopted this kind of scenario was never on the cards. That is why it is time for us to act responsibly.
   • The Government observes that the fact that reference is made to employer protection collective agreements does not mean that they are recognized or legitimate. On the contrary, the Secretary of Labour and Social Security stated that society as a whole is worried about fake labour relations and trade unions, as they do not respect workers’ rights and undermine the law. That was why he invited the unions to work with him to eliminate practices which are so prejudicial to the workers.
   • – On 4 August 2009 Mr Lozano Alarcón presided over the general assembly of the airline pilots’ union:
     • Mr Javier Lozano rejected the practices engaged in by certain companies that have attempted to impose so-called “protection agreements”, which in many cases have proved to be a serious breach of the Federal Labour Act, as a result of which companies that have tried to simulate working conditions required by law have been severely punished.
   • The Government states that Mr Lozano Alarcón was referring to the practice by certain companies of imposing collective agreements that are not in the workers’ interests, as they are signed with fictitious unions that do not represent the workers and sometimes do not even exist except on paper. He added that such practices have been condemned as illegal and that, where their existence has been clearly established, they have been sanctioned accordingly.
   • – On 25 March 2010, in a meeting with Mr Carlos Puig of W Radio, Mr Lozano Alarcón stated:
     • I am against both puppet trade unions and protection agreements. The antidote is transparency, allowing workers themselves to access collective agreements on the Internet, elect their executive committee in a free, direct and secret ballot and be able to change their union membership without being dismissed under the exclusion clause. This is the labour initiative that my party is proposing, precisely to tackle and remedy many of the shortcomings that unfortunately exist in our legal system.
   • The Government states that what Mr Lozano Alarcón said is true and that it was confirmed in a press release published by the El Universal newspaper on 5 May 2008, which read: “The Secretary of Labour and Social Security also expressed the view that the best antidote to protection agreements was transparency and information.”
   • The Government states that it is clear from Mr Lozano Alarcón’s statement that, if workers are properly informed of their rights, of the unions that have been officially registered and of the collective agreements that are in force, then they are in a better position to take decisions and, if they wish, to appeal to the competent authorities to demand that their individual and collective rights be respected. The then Secretary of Labour and Social Security emphasized that the antidote to simulation was transparency, and that is why the present administration decided right from the start to make public the secretariat’s information on trade union registration and on collective agreements registered with the Federal Conciliation and Arbitration Board (JFCA), in accordance with the Federal Act on Transparency and Access to Public Government Information (which excludes workers’ personal data). Consequently, according to the Government, the workers and the public at large have, from 1 January 2008, been able to access the STPS website (http://contratoscolectivos.stps.gob.mx/RegAso/ legal_contratos.asp) containing 100 per cent of trade union’s executive committee minutes, statutes and lists of members, as well as collective labour agreements, official contract administration agreements and the internal labour regulations of the federal jurisdiction. If, in any labour centre, an agreement is concluded with a trade union unknown to the workers, they now have the opportunity to know the name of the union they belong to and the name of its Secretary-General and to obtain a copy of the agreement. This way they can be fully informed of their rights and duties so as to be in a position to defend those rights before the competent authorities. This also has a positive impact on labour relations, strengthens freedom of association and is conducive to industrial peace.
6. 738. The Government states further that Mr Lozano Alarcón also mentioned that the federal legislature was currently analyzing and studying an initiative to reform the Federal Labour Act which, if adopted as proposed, would resolve some of the problems in Mexico’s labour relations system. It is untrue, as the complainants’ claim, that under the reform of the Federal Labour Act employer protection collective agreements would be tolerated. The amendments proposed to the Act are actually designed to prevent such practices becoming commonplace, as can be seen from the last paragraph of point 35 of the initiative which revises, expands and derogates from several provisions of the Federal Labour Act presented in March 2010 and which stipulates:
   • Similarly, and in order to prevent the conclusion of so-called “protection agreements” in collective labour relations, article 390 proposes that the aforementioned requirements must be complied with when collective labour agreements are submitted to the Conciliation and Arbitration Boards.
7. 739. The Government goes on to state that the amendment proposed to article 390 reads as follows:
   • Article 390. Collective agreements must be concluded in writing, failing which they shall be null and void. They shall be drawn up in triplicate, one copy being held by each of the parties and the third being registered with the relevant Conciliation and Arbitration Board. No agreement may be registered that does not include the documentation listed under Clause IV, point 2 of article 920 of the present Act.
   • This shows that the proposed amendment to article 390 goes hand in hand with a complete revision of article 920 to bring it in line with article 390. It is proposed that the amended article 920, and specifically clause IV, read as follows:
   • Article 920. The procedure for calling a strike shall begin with the presentation of a list of demands, which must meet the following requirements:
   • I to III …
   • IV. If the object of the strike is the signing of a collective agreement, the request must be accompanied by the current registration documents or by certified copies thereof issued by the registering authority, concerning:
     • 1. the executive committee of the trade union;
     • 2. the union’s statutes, in order to verify that the object of the strike concerns the industrial sector or branch of activity of the company or establishment with which the union wishes to conclude an agreement; and
     • 3. the list of the trade union’s members who work for the company or establishment.
8. 740. The Government states that its intention is that the registering authority should be able to establish with a greater degree of certainty that there really is a trade union behind the collective agreement to be registered. In this way the workers’ power of legal recourse will also be enhanced, as they can be sure that the collective agreement registered with the authorities is backed by a trade union, since the authorities will not accept to register any agreement that is not accompanied by the statutes of the trade union with which it was concluded.
9. 741. Regarding the specific case of the companies cited in paragraphs 796 and 799 of the Committee’s 359th Report, the Government submits the information below.

National Union of Petroleum Technicians and Professionals (UNTyPP)

1. 742. On 29 April 2008 the UNTyPP applied for registration to the General Directorate for Registration on Associations (DGRA) of the STPS. At the time the DGRA rejected the union’s request on the grounds that its own members had not endorsed the union’s statutes, inasmuch as the workers’ expressed wish to set up a trade union was subsequent to the date of the request for registration, that there was no proof that the workers were in positions of trust and that the workers’ coalition did not have the required minimum number of members. On 16 December 2009, following a series of administrative and judicial procedures initiated by the UNTyPP, the DGRA accepted the organization’s registration as a trade union composed of workers in positions of trust of Petróleos Mexicanos (PEMEX) and its subsidiaries. As a further demonstration of its respect for freedom of association as embodied in the Constitution and in the Federal Labour Law, the STPS through the DGPA took note of the creation of two sections of the trade union and of the updated list of its members; the average time taken for these formalities was one day in each case. In its complaint the UNTyPP alleges that PEMEX then began a campaign of harassment and intimidation of the trade union, dismissed its principal officers and cut back the social benefits of its members in order to undermine the Union of Petroleum Workers of the Mexican Republic.
2. 743. The Government adds that, upon inquiry, it has learnt that PEMEX had been informed in writing by Didier Marquina Cárdenas, Secretary-General of the UNTyPP, that the union had been registered on 30 December 2009. Discussions with Mr Marquina Cárdenas prior to the union’s registration had been cordial and respectful and at no moment had he been placed under any kind of duress. Since 25 March 2010 PEMEX and the UNTyPP had held over 15 meetings to discuss matters raised by the latter, including the dismissal of workers. PEMEX had explained to the union that the movements of personnel were attributable to developments within the company itself, mainly arising from the optimization of its production processes and the introduction of new technology that had obliged the company to make a number of cuts in staff, none of which, it stressed, had been motivated by the workers’ trade union activities. At the meetings PEMEX agreed to see what possibilities there might be of re-hiring the members of the UNTyPP who had been affected by the movements of personnel, to the extent that their skills were needed. The meetings between PEMEX and UNTyPP were suspended when the union failed to respond to two invitations from the company, one on 9 August 2011 and the other on 12 September, thereby manifesting its lack of interest in reaching an agreement through dialogue. It should, however, be mentioned that the matter is being looked into in the context of the talks with the UNT and that a number of meetings have been held with the mediation of the authorities to try and reach agreement between the parties and end the dispute.
3. 744. Regarding the dismissed union officers, the Government points to the cases of Mr Oscar del Cueto Charles, Mr Didier Marquina Cárdenas, Mr Francisco Ríos Piñeiro and Mr Eloy Castellanos Cruz, who are alleged to have been dismissed without grounds. PEMEX has informed the Government that the contract of Mr Oscar del Cueto Charles was terminated on 8 June 2008 following the reorganization of the company’s storage and distribution unit. Upon termination he received the benefits provided for by law. As to Mr Didier Marquina Cárdenas, Mr Francisco Ríos Piñeiro and Mr Eloy Castellanos Cruz, the Government states that they have since been reinstated in their jobs. The complainant also alleges that PEMEX failed to pay medical benefits due to UNTyPP officers and their families, but PEMEX claims that social security benefits are of a general nature and due only to workers with a current contract and to their dependants.

Commercial, Office, Retail, Similar and Allied Workers’ Union (STRACC)

1. 745. Regarding the issue of collective bargaining rights, the complainant organization alleges that the Local Conciliation and Arbitration Board of the Federal District (JLCADF) did not respect the confidential nature of the names and addresses of workers affiliated to STRACC, when it submitted a request for bargaining rights in the Nivel Superior de Servicios SA de CV company, and that this resulted in dismissals and a delay in STRACC’s recognition as the signatory of the agreement. In response, the JLCADF denied having made public the information contained in the sealed envelope presented by STRACC; it was the trade union itself that authorized the release of the contents, as can be seen from the written request it submitted. The JLCAD did not at any moment show the parties or anyone else the documents that were attached to the request.
2. 746. According to the complainant, the JLCADF refused to hold a hearing to verify STRACC’s claim to bargaining rights, on the grounds that one of the parties had not been notified or had been irregularly notified. On this point, the JLCADF stated that on 12 March 2003, for the first time, a conciliation, demand and exceptions hearing was held which STRACC did not attend even though an invitation had been sent to the address it had given.
3. 747. In accordance with the procedure for awarding collective bargaining rights, the JFCADF set the ballot for 20 August 2003. However, the counting procedure had to be suspended because on 15 August 2003 the co-respondent trade union (the National Union of Workers of the Petroleum Products, Distribution and Sales, Services, Similar and Allied Industries of the Mexican Republic, signatory at the time of the company’s collective agreement) called for the procedure to be declared null and void on the grounds that the address of the union concerned was not the one it had indicated. On 8 September 2003 the procedure was ruled to be null and void, and the JLCADF therefore annulled the proceedings initiated by STRACC and summoned the co-respondent to appear.
4. 748. The complainant argues that in conducting the ballot the JLCADF used the voting list provided by the company without verifying that some of the people on the list did not work for it, and the whole process degenerated into a climate of aggression that the JLCADF was unable to prevent. The JLCADF claims that it is required to draw up a list of workers to serve as a basis for the ballot and that, in the case in point, it used the information provided by the company and by the two trade unions. Moreover, it examined every aspect of the dispute in detail as required by the Federal Labour Act and at all times endeavoured to ensure that justice prevailed. As a result of the JLCADF’s procedure for awarding bargaining rights for the collective agreement concluded with the company, the STRACC won the ballot.

Johnson Controls, Puebla

1. 749. The complaint mentions that the Johnson Controls company has started systematically denying workers their labour rights, for instance by making them work longer hours and reducing their bonus and share of profits. Consequently, a group of workers got together to request that the signatory of the collective agreement protect their rights.
2. 750. The Government states that Johnson Controls Servicios, S. de RL de CV, signed a collective agreement with the Union of Workers and Employees of the Natural Mineral and Fibres Extraction and Processing, Similar and Allied Industries of the Mexican Republic, affiliated to the Confederation of Trade Unions (COS). A coalition of Johnson Controls workers, dissatisfied with their union, then formed an independent organization and decided to join the National Union of Miners, Metalworkers and Allied Workers of the Mexican Republic (Mining Union). They held a number of demonstrations on the company’s premises, took over the plant and stopped production, in defiance of the provisions of articles 444, 450 and 451 of the Federal Labour Law. In spite of this, the company decided on 29 May 2010 to sign an agreement with the Mining Union whereby it undertook to:
   • – withdraw its legal recognition of the Natural Mineral and Fibres Extraction and Processing, Similar and Allied Industries of the Mexican Republic; and
   • – sign a collective agreement with the Mining Union.
3. 751. On 10 September 2010 the collective agreement between the Mining Union and the company was submitted to the Federal Conciliation and Arbitration Board. Contrary to the complainants’ claim that this was a typical case of an employer protection collective agreement, the fact is that it stemmed from a dispute over collective agreement rights between workers’ organizations, one of which is a coalition of workers affiliated to the Mining Union while the other is affiliated to the COS. It must be pointed out that, under the rules set out in article 388 of the Federal Labour Act, the only requirement for acquiring collective agreements rights, where there are two or more organizations in a company or establishment, is that a union demonstrate that it has the largest number of members.
4. 752. According to the complainants, the company dismissed the workers’ coalition and the Union of Workers and Employees of the Natural Mineral and Fibres Extraction and Processing, Similar and Allied Industries of the Mexican Republic cancelled their membership by resorting to the exclusion clause. Regarding the alleged dismissal of workers by the company, the complainants failed to mention the number of workers dismissed, and it has therefore been impossible to follow up each individual case and inform the Committee accordingly. The Government can, however, confirm that the Supreme Court of Justice has ruled that the provisions of the Federal Labour Act allowing the application of the exclusion clause are unconstitutional. Consequently, workers are free to join the union organization of their choice or not to join any organization at all.
5. 753. Finally, the Government makes the following final observations:
   • (a) Mexico’s legal system does not provide for employer protection collective agreements;
   • (b) workers and employers have the right to establish trade unions to study, improve and defend their interests, in accordance with articles 356 and 357 of the Federal Labour Act. Under article 359 of the Act, trade unions are free to set up organizations, draw up their statutes, designate their representatives and officers and determine their structure and internal affairs;
   • (c) collective labour agreements are the product of negotiation and agreement between workers and employers; should the workers or trade unions deem that their rights have been infringed by so-called “ employer protection collective agreements” or any other kind of agreement, appropriate appeals procedures exist to guarantee their rights;
   • (d) ever since the present administration came to power, the STPS has stressed that the solution to employer protection collective agreements is transparency. That is why it decided to make the trade union registration data in its possession public, along with the information on collective agreements deposited with the Federal Conciliation and Arbitration Board – other than workers’ personal data, for reasons of confidentiality;
   • (e) as from 1 January 2008, workers and the public at large were granted access on the STPS website (http://contratoscolectivos.stps.gob.mx/RegAso/legal_contratos.asp) to 100 per cent of trade union’s executive committee minutes, statutes and lists of members, as well as to collective labour agreements, official contract administration agreements and the internal labour regulations of the federal jurisdiction;
   • (f) consequently, should a collective agreement be concluded with a trade union unknown to the workers, they now have the possibility to find out what union they belong to and the name of its Secretary-General, and to have a copy of the agreement that concerns them. This enables them to be fully informed of their rights and duties and thus be in a position to defend those rights before the competent authorities. It also has a positive impact on labour relations, strengthens freedom of association and is conducive to industral peace;
   • (g) this range of measures supports the STPS’s conviction that the greater the transparency shown by trade unions the better informed the workers will be of their rights, and thus the easier it will be to prevent pernicious practices that are of no benefit to them;
   • (h) finally, the Government repeats its commitment to maintain a respectful and inclusive social dialogue with the sectors of production, in compliance with the law and the principles of freedom of association and collective bargaining.

C. The Committee’s conclusions

1. 754. Regarding recommendation (a) in its previous report on this case (inviting the Government to take measures to initiate a constructive dialogue with workers’ organizations – including the five complainants – and employers’ organizations, on the application of the labour and trade union legislation, in order to examine the issues raised in the complaint), the Committee notes the Government’s statement concerning the considerable efforts it is making since April 2011 to comply with the recommendation by initiating a formal dialogue with employers and workers and notes with interest its commitment to engage in social dialogue with the sectors of production as well as a series of meetings between the authorities, the national trade unions, including some of those that supported the present complaint, and international organizations that have discussed issues connected with the present complaint. The Committee also notes the Government’s statement that: (1) since the year 2008 the STPS has granted access on its website to 100 per cent of trade unions’ executive committee minutes, statutes and lists of union members, as well as to collective labour agreements, official contract administration agreements and the internal labour regulations of the federal jurisdiction, so that the issue of employer protection collective agreements can be resolved in all transparency by preventive measures and by judicial appeals; (2) the workers and trade unions that believe that their rights have been violated by employer protection collective agreements are able to lodge legal appeals to have their rights vindicated; (3) contrary to the complainants’ claims, the current reform of the Federal Labour Act contains provisions (described in detail by the Government) that are designed to prevent such practices as the acceptance of employer protection collective agreements from becoming commonplace.
2. 755. The Committee requests the Government to examine, within the framework of the tripartite dialogue, the issues raised in this complaint regarding the enforcement of labour and trade union legislation. As the Committee stated in its previous examination of this case, such dialogue should cover: (1) the questions relating to the trade union protection clauses, “exclusion clauses”, which were declared unconstitutional by the Supreme Court and which may give rise to the kind of situation contemplated in the complaint; (2) questions relating to the minimum representativeness of trade unions in order to bargain collectively; and (3) the alleged lack of impartiality of the JCAs and the allegedly excessive length of their proceedings. The Committee firmly expects that a dialogue will take place with the most representative national workers’ and employers’ organizations, as well as the six organizations that are complainants in this case or have supported it. The Committee requests the Government and the complainants to report on developments and expects that the legislative and other measures will be taken in near future to strengthen protection against anti-trade union practices in breach of collective bargaining principles, which have been raised in the present complaint.
3. 756. Regarding recommendation (b) of its previous examination of the case, concerning certain allegations and examples presented by the complainants, the Committee takes note of the information sent by the Government and by the companies concerned. The Committee recalls that the said examples were made available by the complainant organization at the Committee’s request in order to back up their allegations and not for it to formulate conclusions on alleged incidents that occurred years ago in the companies referred to. The Committee observes that the information provided does not cover all the issues raised, but it does not discount the possibility that problems exist in granting trade unions the right to bargain collectively or in the functioning of the system for protecting trade union rights. The Committee expects that such situations as those cited in the complaint will be borne in mind as a subject for discussion in the formal dialogue that the Government plans to organize.
4. 757. The Committee also takes note of the information sent by the Government regarding the statements of the former Secretary of Labour and Social Security confirming instances of collective agreements being concluded with fictitious organizations which, he says, are illegal and have been duly sanctioned, as well as the use of trade union security clauses (exclusion clauses) which are unconstitutional and which it is hoped that the current labour legislation reform will put an end to.
5. 758. The Committee notes that the Government has not sent any specific information on the statements of other public figures or on the alleged large number of employer protection collective agreements but considers that with the facts that will be at the disposal of the round table of tripartite dialogue it is no longer necessary that it do so.