Observation (CEACR) - adoptée 1989, publiée 76ème session CIT (1989)

The Committee notes the Government's report. The Committee recalls that on several occasions it has pointed out that the following provisions of the Federal Act on state employees of 1963 are not in conformity with the Convention:

- the prohibition of a worker in the service of the State from leaving the union to which he belongs (section 69);

- the prohibition of the re-election of trade union officers (section 75);

- the prohibition of unions of public servants from joining trade union organisations of workers or peasants (section 79);

- 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).

Concerning the prohibition of the coexistence of two or more unions in the same state body, the Government indicates that the Federation of Unions of Workers in the Service of the State (FSTSE) considers that under section 73 of the Federal Act on state employees it is possible, when a trade union organisation is already registered as a result of the will of the workers for another to exist as long as a recount is undertaken to determine which of the organisations has the largest membership and if the results show that that organisation represents a majority of the workers it shall represent their occupational interests and be registered, while the other shall be de-registered.

In the opinion of the FSTSE, to validate the permanent coexistence of various workers' representative organisations in the same body would be equivalent to justifying the "pulverisation" of trade union organisations and dividing workers in order to reduce the strength of the trade union movement to the prejudice of the common interests that it represents.

The Committee notes the information supplied by the Government and the opinion of the FSTSE, and wishes to point out that it is not necessarily incompatible with the Convention for the legislation to establish a distinction between the most representative trade union and the other trade unions, provided that this distinction is limited to the recognition of certain rights (particularly in regard to representation for the purposes of collective bargaining and consultation by governments) to the most representative trade union. The possibility of such a distinction does not imply, however, that the existence of other trade unions, which some of the workers concerned may wish to join, or the activities of these trade unions may be prohibited. The Committee emphasises that minority organisations should be allowed to function and at least have the right to make representations on behalf of their members and to represent them in the case of individual grievances (see paragraph 141 of the 1983 General Survey of the Committee of Experts). The Committee also regrets to note the provisions of section 23 of the Act issued under clause XIII bis, subsection B, section 123, of the Constitution, which gives legal effect to the trade union monopoly of the National Federation of Banking Unions.

With regard to the prohibition on workers in the service of the State from leaving the union to which they belong (section 69), the FSTSE considers that this section is not in opposition to Convention No. 87, since the Convention does not expressly provide for the right of unionised workers to leave the trade union to which they belong.

In this connection, the Committee reiterates that the public authorities must refrain from legislative interventions which limit the right of workers to join the trade union organisation that they consider to be appropriate (Article 2 of the Convention) and the right to give up their membership of that trade union.

With regard to the prohibition on the re-election of trade union officers (section 75), the FSTSE considers that this prohibition on the re-election of officers in no way infringes the right of workers to freely elect their trade union leaders, since the trade union leader who holds office is legally prevented from holding the same office in the following period, which in no way implies that the actual right of free election is restricted.

While noting these statements, the Committee wishes to point out that under the terms of Article 3 of the Convention, it must be left to the by-laws of workers' organisations to deal with elections and that, irrespective of the type of prohibition on the re-election of trade union officers (absolute prohibition, prohibition of re-election when the persons concerned have held office previously, or after a certain number of consecutive terms), any legislation which prohibits or restricts re-election to trade union office is incompatible with the Convention (in this connection, see paragraphs 165 and 166 of the General Survey).

With reference to the prohibition on unions of public servants from joining organisations or central trade unions of workers or peasants (section 79), the Government states in its report that this provision in no manner infringes the right of public servants' trade unions to belong to any central organisation such as the FSTSE. The trade unions of workers in the service of the State are organisations made up of employees of the federal public administration, who cannot be considered similar to members of workers' or peasants' trade unions in view of the public tasks for which the various departments of the Federal Government are responsible, namely, non-profit-making services, which implies that there is no similarity between trade unions of workers in the service of the State and the trade unions of workers employed in the private sector or of peasants and there would therefore be no legal or functional purpose behind the trade unions of workers in the service of the State being able to join the organisations or central trade unions of workers or peasants.

While noting the Government's repeated statements, the Committee wishes once again to point out that the provisions of Article 5 of the Convention provide that, without any exceptions, "workers' ... organisations shall have the right to establish and join federations and confederations".

With regard to the extension of the restrictions applicable to trade unions in general to the single Federation of Trade Unions for Workers in the Service of the State (section 84), the Committee notes the Government's statements in its report to the effect that the previous point raised in the observation is also related to the system under which only one central trade union organisation, such as the FSTSE, exists to which trade unions of workers in the service of the State may affiliate. Furthermore, the FSTSE recognises that with the adoption of the conditions of employment of workers in the service of public authorities in 1938, workers in the service of the State were recognised for the first time in Mexico as a category of worker. At that time it was recognised that the State, through its officials, had the nature of an employer and that, since this new category of worker was composed of all workers in the service of the Federal Government, special provision was made for them to have full rights to establish one trade union for each state body in order to unify all the workers so that they could better defend their common interests. As a consequence, irrespective of the state body in which they are employed, there are numerous terms of employment that are agreed upon at the general level for public servants. It is therefore indispensable that one single higher organisation should participate in negotiations and represent this category of worker. This system has fully guaranteed the rights of public servants, which would not be the case if various higher organisations were allowed to exist, since the uniformity of terms of employment for this category of worker would be ended, to the detriment of the workers themselves and the public administration.

The Committee wishes to reiterate its previous comments concerning this point and to emphasise that, under the terms of the Federal Act on state employees, the Federation of Unions of Workers in the Service of the State is the only central organisation recognised by the State (section 78) and that it is governed by the provisions relating to trade unions in this Federal Act (section 84). In these circumstances, the Committee wishes to point out that, although for the workers it is in general advantageous to avoid a multiplicity of competing organisations, the imposition by law of a system of trade union unity at the level of federations is incompatible with the right of workers' organisations to establish federations and confederations (Article 5 of the Convention) and it refers to its earlier comments relating to the restrictions applicable to trade unions in general (see paragraph 138 of the General Survey).

The Committee once again expresses the hope that the Government will re-examine the legislation in the light of the principles of the Convention and will supply information on any measure that has been adopted or is under consideration to bring the Federal Act on state employees into conformity with the requirements of the Convention.