Observation (CEACR) - adoptée 2003, publiée 92ème session CIT (2004)

At its last session the Committee noted the comments made by the International Confederation of Free Trade Unions (ICFTU) on the application of the Convention and the Government’s reply to them, and decided that it would examine them at the present session. The ICFTU brings up numerous issues, which are referred to below.

Article 2 of the Convention

1. The right of workers, without distinction whatsoever, to form trade union organizations.

(i)  Workers in export processing zones. The Committee notes that, according to the ICFTU, although Mexican laws and regulations guarantee the same trade union rights for all workers, workers in export processing zones (maquiladoras) wishing to form trade union organizations are coming up against considerable obstacles raised by employers with the connivance of the local authorities. The Committee notes with regret that the Government has not sent its comments on this matter and asks it to ensure both in law and in practice that all workers in the export processing zones enjoy the right of association as provided in the Convention.

(ii)  Workers under service provision contracts. The ICFTU observes that many workers are treated as service providers and are consequently not covered by labour legislation and are unable to exercise their trade union rights. The Committee notes that the Government merely states that the labour regime is a matter of public policy and that, consequently, any definition in contracts which is contrary to such policy, or which aims to circumvent it is void (having no effect in law). The Committee requests the Government to take steps to ensure that all workers, including those defined as service providers, are able to exercise their trade union rights both in law and in practice.

(iii)  Domestic workers. The Committee notes that, according to the ICFTU, domestic workers are not protected under the labour regime and consequently can neither join nor form trade union organizations. The Committee also notes that, according to the Government, domestic workers are covered by the rights and obligations laid down in the federal labour law for workers in general and are also covered specifically by Chapter XIII, Sixth Title, sections 331-343 of the said law. The Committee requests the Government to ensure that domestic workers enjoy, in practice, the guarantees of the Convention which are established in the legislation.

2. The right of workers to form organizations of their own choosing.

(i)  Workers in the service of the State and bank workers. The Committee notes that, according to the ICFTU, the trade union monopoly imposed by the Federal State Workers’ Act and by the Constitution remains in force, despite the fact that the Supreme Court of Justice held in 1999 that such a monopoly was in breach of the guarantee of freedom of association laid down in Article 123 (B) (X) of the Constitution. The legislation also imposes trade union monopoly in the banking sector through the National Federation of Bank Workers’ Unions. In its previous observation the Committee noted the Government’s confirmation that the legislation imposes a monopoly. The Committee again reiterates the comments it made in that connection and expresses the firm hope that the Government will take steps to repeal or amend these provisions of the law so as to bring them into line with the Supreme Court ruling and the Convention. The Committee requests the Government to provide information in its next report on all measures taken in this regard.

(ii)  Delays in registration. The Committee also notes the ICFTU’s observations concerning obstacles and delays in the registration of new trade unions caused by the Conciliation and Arbitration Boards. The Committee notes the Government’s description of the trade union registration system. It requests the Government to ensure that, in practice, the registration of trade unions is carried out without delay in order to allow trade unions to exercise their rights fully.

Article 3 of the Convention

3. The right of workers’ organizations to elect their representatives in full freedom. Prohibition of the re-election of trade union leaders in trade unions of public employees (section 74). The Committee notes with regret that the Government has not commented on these points and requests it to take the necessary measures to ensure that public employees, like other workers, are free to elect their representatives in accordance with the provisions of the Convention.

4. The right of workers to draw up their programmes. Strikes. The Committee notes that according to the ICFTU, conciliation and arbitration boards have the authority to declare strikes "non-existent", which can entail the dismissal of workers participating in them. The ICFTU gives figures showing that the boards make frequent use of this authority, strikes being seldom deemed legal. The Committee notes that, according to the Government, the boards may declare strikes to be non-existent only if they meet one or more of the conditions laid down in the legislation: where the object of the strike is not one of those listed in the legislation, where the strike was not decided on by the majority of the workers in the enterprise or when the strike procedure was not triggered by the submission of claims that comply with requirements set by law. The Committee requests the Government to provide statistics on claims submitted with a view to a strike and strikes actually held, indicating specifically those that were declared non-existent and the grounds given by the administrative authority.

The Committee requests the Government to send its comments in its next report together with all relevant information on these matters and on all the points raised by the Committee at its last session (see 2002 observation, 73rd Session).