Observation (CEACR) - adoptée 1996, publiée 85ème session CIT (1997)

The Committee notes the Government's report and the statement made by the Government representative before the Conference Committee on the Application of Standards in June 1995, and the discussion which took place thereafter. It also notes the conclusions of the Committee on Freedom of Association in Case No. 1844 (see 300th and 302nd Reports, paragraphs 215 to 244 and paragraph 66, approved by the Governing Body at its sessions in November 1995 and March 1996).

1. Trade union monopoly imposed by the Federal Act on State Employees and the Constitution

The Committee notes that for many years its comments have referred to the following provisions of the Federal Act on State Employees and the Constitution: (i) the prohibition of the coexistence of two or more unions in the same State body (sections 68, 71, 72 and 73); (ii) the prohibition of a trade unionist from leaving the union to which she or he belongs (section 69); (iii) the prohibition of the re-election of trade union officers (section 75); (iv) the prohibition of unions of public servants from joining trade union organizations of workers or rural workers (section 79); (v) 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); and (vi) the imposition in the law of the trade union monopoly of the National Federation of Banking Unions (section 23 of the Act issued under article 123(B)(XIII bis) of the Constitution).

The Committee notes with interest that the Supreme Court of Justice has issued two rulings related to the legislation governing public servants in two states (Jalisco and Oaxaca), which refer to three basic workers' rights that must be respected: of becoming a member of an existing trade union or associating for the establishment of a new one; of not becoming a member or being affiliated to any trade unions; and of giving up membership of a trade union. The Supreme Court rulings emphasize that at no time did the legislators who formulated the Constitution envisage a trade union monopoly and that secondary legislation cannot therefore restrict the freedom of association by establishing that in state bodies and agencies there cannot be more than one union. Furthermore, the Committee notes that the Supreme Court approved the case-law principle establishing that the employment relationships between decentralized agencies and their employees must be governed by article 123(A) of the Political Constitution of the United States of Mexico and the Federal Labour Act.

In this respect, even though the above rulings and case law of the Supreme Court go in the same direction as the requirements of the Convention, the Committee is bound to regret that, despite the time that has elapsed since the ratification of the Convention in 1950 and the first comments made by the Committee, the Government has provided no new information concerning the practical measures adopted to bring its legislation into conformity with the provisions of the Convention and the principles of freedom of association.

In these conditions, the Committee urges the Government to take the necessary measures to repeal or amend the above provisions of the Federal Act on State Employees and the Constitution in order to bring the national legislation into conformity with the Convention and guarantee workers in the service of the State the right to establish organizations of their own choosing including, if they so wish, those outside the existing structure in accordance with Article 2 of the Convention.

2. Right of workers to elect their representatives in full freedom

The Committee regrets to note that the Government has not provided comments on the provision that was criticized in a direct request concerning the prohibition placed upon foreigners from being members of trade union executive bodies (section 372 (II) of the Federal Labour Act).

In these conditions, the Committee recalls that provisions on nationality which are too strict could deprive some workers of the right to elect their representatives in full freedom and therefore requests the Government to take measures to allow foreign workers to take up trade union office, at least after a reasonable period of residence in the country, or where reciprocity conditions exist, at least for a certain proportion of trade union leaders (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 118).

The Committee requests the Government to inform it in its next report of any developments with regard to all of the questions raised.