Observation (CEACR) - adoptée 2004, publiée 93ème session CIT (2005)

The Committee notes the Government’s report.

The Committee recalls that for many years it has been referring to the following matters.

1. The trade union monopoly in state bodies imposed by the Federal Act on State Employees and by the Constitution. The Committee recalls that for many years it has been commenting on the following provisions of the Federal Act on State Employees:

(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 of which he or she has become a member (an exclusion clause under which the trade unionist loses his or her job by no longer being a member of the union) (section 69);

(iii)  the prohibition of re-election in trade unions (section 74);

(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 by law of the trade union monopoly of the National Federation of Banking Unions (section 23 of the Act issued under article 123(B)(XIIIbis) of the Constitution).

With regard to points (i), (iv), (v) and (vi) above, the Committee notes the Government’s indications that: (1) the Committee’s understanding that the Political Constitution imposes a trade union monopoly is not correct; (2) the principle of the freedom to join organizations of workers in the service of the State is set forth in the Political Constitution; (3) under the terms of ruling No. 43/1999, the Federal Conciliation and Arbitration Tribunal has granted registration to trade union organizations in bodies in which another union exists; (4) in view of the above, it may be inferred that two or more trade unions may coexist in state bodies, provided that it is the will of the workers to be organized into a plurality of associations and that they also meet the requirements set out in law for membership and operation of trade unions; and (5) the legislative authority is the only authority empowered to issue regulations under article 123 of the Political Constitution, in accordance with article 73(X) of the Constitution. Taking into account the practice followed by the Federal Conciliation and Arbitration Tribunal and the above ruling, the Committee requests the Government to take measures to amend the legislative provisions commented upon so as to bring the legislation into conformity with the Convention and with current practice as described by the Government.

With regard to point (ii), which relates to the exclusion clause, the Committee notes the Government’s indication that it is not applicable in relation to workers in the service of the State who are members of trade union organizations, as this is prohibited by section 76 of the Federal Act on State Employees and the Federal Conciliation and Arbitration Tribunal (TFCA) has verified the decisions by workers to end their membership of one trade union and seek the membership of others (the Government refers to the cases of five trade union members). In this regard, the Committee notes that section 69 provides that "all workers are entitled to join the corresponding trade union, although once they have sought and obtained membership, they may no longer leave it unless they are expelled". The Committee accordingly requests the Government, taking into account the provisions of section 76, to take measures to amend section 69 as indicated above and in accordance with the practice followed by the TFCA.

With regard to point (iii) concerning the prohibition of re-election in trade unions, the Committee notes the Government’s indication that the TFCA applies ruling No. CXVII/2000 of the Supreme Court of Justice, which found that section 74 of the Federal Act on State Employees, which prohibits the re-election of trade union leaders, is in contravention of the freedom of association established in article 123 of the Constitution, and that cases of re-election in 20 trade unions have been observed. In this connection, the Committee requests the Government to amend section 74 as indicated by the case law so as to bring it into conformity with the Convention and with current practice.

The Committee once again requests the Government to provide information on any measures adopted in relation to the following matters.

2. Prohibition of foreign nationals from being members of trade union executive bodies (section 372(II) of the Federal Labour Act). The Committee notes the Government’s indications that: (1) in the context of the "new labour culture", the Central Decision-Making Forum has been established for the reform of the Federal Labour Act, within which the organizations of workers and employers succeeded in formulating a set of draft reforms of the Federal Labour Act; and (2) this draft text was converted into a Bill on 12 December 2002, which is being examined by the legislative authority. In this regard, the Committee hopes that the Bill provides for the amendment of section 372(II). The Committee requests the Government to provide information in its next report on developments related to the Bill.

3. The limited right to strike of public officials who do not exercise authority in the name of the State:

(i)  workers, including those who are employed in public banks, are only able to exercise the right to strike in one or more agencies of the public authorities when there is a general and systematic violation of the rights set out in article 123(B) of the Constitution (which provides that workers shall have the right to associate in the defence of their common interests) (section 94(4) of the Federal Act on State Employees and section 5 of the Act on banking and credit issued under article 123(b)(XIIIbis) of the Constitution). The Committee notes that the Government reiterates the comments it made in its report in 2002, and particularly that there is no Bill to amend these legislative provisions. In this regard, the Committee once again emphasizes that the prohibition of the right to strike in the public service should be limited to public servants exercising authority in the name of the State and it once again urges the Government to take the necessary measures to amend the legislation so as to bring it into conformity with the Convention. The Committee requests the Government to keep it informed in its next report of any measures adopted in this respect;

(ii)  the requirement of two-thirds of workers in the public body concerned to call a strike (section 99(II) of the Federal Act on State Employees). The Committee notes the Government’s indication that it is necessary to bear in mind that the Federal Act on State Employees provides in section 93 that strike action is the manifestation of the will of the majority of workers in an entity to withdraw their labour in accordance with the requirements set out in this Act. In this connection, observing that one of the requirements to call a strike is for it to be supported by two-thirds of the workers in the public body concerned, the Committee urges the Government to take the necessary measures to amend section 99(II) (for example, by requiring only a simple majority of the votes cast to call a strike). The Committee requests the Government to provide information in its next report on any measures adopted on this subject.

Furthermore, in its observation in 2002, the Committee observed that various laws on the public services contain provisions relating to the requisitioning of personnel in cases, among others, in which the national economy could be affected (section 66 of the Federal Telecommunications Act, section 56 of the Act regulating the railways, section 112 of the Act respecting general thoroughfares, section 25 of the Act respecting the national vehicle register, section 83 of the Civil Aviation Act, section 5 of the internal rules of the Secretariat for Communications and Transport and section 26 of the internal rules of the Federal Telecommunications Commission). The Committee notes the Government’s indications that: (1) requisitioning consists of the expropriation of goods or the forced use of moveable or immovable property, including the temporary control of persons in certain services, as determined by the competent authority, to be able to meet needs or undertake acts required forthwith to maintain calm or public order; and (2) a strike is the right vested in a coalition of workers in the service of the State to suspend work temporarily when the titular head of an entity in her or his capacity as employer does not accede to their labour demands and the rights enshrined in article 123(B) of the Constitution are violated in a general and systematic manner, and as such requisitioning is an administrative act undertaken by the authority in the event of natural disaster, war, a serious deterioration in public order or where an imminent danger is foreseen for national security, the internal peace of the country or the national economy. The Committee considers that the reference to an imminent danger for the national economy is too broad and it therefore reminds the Government that restrictions on the right to strike in circumstances in which the national economy may be affected could be contrary to the principles of the Convention and that the requisitioning of workers who are on strike could be abused where it is used as a means of settling labour disputes (see General Survey on freedom of association and collective bargaining, 1994, paragraph 163). The Committee accordingly requests the Government to take measures to amend the above provisions and to provide information on this subject with its next report.

In its previous comments, the Committee noted the observations made by the International Confederation of Free Trade Unions (ICFTU) on the application of the Convention and the Government’s reply. The Committee notes that the Government has provided further information with its report stating that: (1) the report of the ICFTU seeks to link trade policy with labour standards, whereas the objective of the Committee of Experts when examining reports is to ascertain the extent to which each State is in compliance with the provisions of Conventions and the obligations accepted in accordance with the Constitution of the ILO; (2) the ICFTU’s comments are only one of the elements in all the documentation available to the Committee to review the report on the Convention; and (3) the Committee has to take into consideration the fact that no other information exists supporting the general and groundless contentions of the ICFTU, which cannot therefore be verified. The Committee recalls that the ICFTU referred to numerous aspects described below.

Article 2 of the Convention. 1. Right of workers, without distinction whatsoever, to establish trade union organizations.

(i)  Workers in export processing zones. 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 establish trade union organizations encounter considerable obstacles raised by employers with the connivance of the local authorities. The Committee notes the Government’s indication that: (1) in Mexico, export processing zones have no legal existence, and that it is not therefore possible to determine where the alleged obstacles arose which were encountered by workers in establishing trade unions, nor the manner in which the local authorities tolerate them; (2) national laws and regulations recognize the principle of freedom of association and all workers throughout the national territory enjoy the same labour rights and therefore have the right to establish trade union organizations. The Committee observes that in the ICFTU’s communication forwarded to the Government, maquila enterprises are mentioned by name (for example, the Han Young maquila, Kuk-Dong, Duro-Bag plant in Rio Bravo and the Alcoa plant in the state of Coahuila) in which various violations of trade union rights are alleged to have been committed. The Committee accordingly requests the Government to ensure in both law and practice that all workers in export processing zones benefit from the safeguards set out 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 the Government’s indication that all persons engaged in a labour relationship, irrespective of its form or denomination, are governed by the Federal Labour Act and that the provisions of this Act are a matter of public policy and that, consequently, any provision in contracts establishing that the worker renounces any of the rights or prerogatives set forth in labour standards is of no legal effect, nor would it prevent the enjoyment and exercise of such rights.

(iii)  Domestic workers. The Committee notes that, according to the ICFTU, domestic workers are not protected under the labour legislation and consequently can neither join nor establish trade union organizations. The Committee notes the Government’s reiteration of its statement that domestic workers, in addition to being covered by the rights and obligations laid down in the Federal Labour Act for workers in general, are also covered by the specific protection set out in Chapter XIII, Sixth Title, sections 331 to 343 of the Act. Noting that domestic workers are covered by the protections set out in the Federal Labour Act, the Committee requests the Government to ensure that these workers enjoy the guarantees of the Convention in practice.

2. Right of workers to establish organizations of their own choosing. Delays in registration. The ICFTU refers to obstacles and delays in the registration of new trade unions caused by the Conciliation and Arbitration Boards. The Committee notes the Government’s reference to the procedure envisaged in the Federal Labour Act and its indication that if a trade union organization considers that the authority’s decision concerning the application for the registration of a trade union is not in accordance with the above Act, it may make use of the means of recourse set out in the law. The Committee once again requests the Government to ensure that in practice the registration of trade unions is carried out without delay in order to allow them to exercise their rights in full.

Article 3 of the Convention. Right of workers’ organizations to draw up their programmes. According to the ICFTU, the Conciliation and Arbitration Boards have the authority to declare strikes "non-existent", which can entail the dismissal of workers participating in them. The ICFTU provides figures showing that these Boards make frequent use of this authority, as strikes are seldom deemed to be legal. In its previous comments, the Committee requested the Government to provide statistics on the claims submitted with a view to calling a strike and the strikes actually held, with an indication of the precise number of strikes which were declared non-existent and the reasons given by the administrative authorities. The Committee notes the Government’s indication that during the period covered by the report 11,370 claims with notice of strike action were lodged with the Federal Conciliation and Arbitration Board, of which only 66 led to strike action and two were declared non-existent, in one case because it was ruled that it did not comply with the purpose of strike action as set out in section 450(II) of the Federal Labour Act, while in the other case the strike was declared non-existent in compliance with the order of the competent authority as it did not meet the requirements set out in section 290 of the Federal Labour Act.