Suites données aux recommandations du comité et du Conseil d’administration - Rapport No. 332, Novembre 2003

Effect given to the recommendations of the Committee and the Governing Body

1. 109. The Committee examined at its November 2002 meeting this case, which relates to the refusal to register amendments to the by-laws of the Progressive Trade Union of Workers of the Construction Industry of the Mexican Republic (SPTICRM) so that it may include in its activities any industrial establishment and/or branch of construction involved in gas installations, gas pipelines, electricals and electricity. On that occasion, the Committee noted that the Government had pointed out that the administrative authorities took note of the by-laws on 14 August 2002 and that the complainant organization raised objections concerning certain aspects of a subsequent decision of the administrative authority on this question, in particular, to the extent in which they require that the trade union’s objectives should be limited to the federal level. The Committee also noted that the Government stated that the trade union in question is registered at the federal level and that, as a general rule, the construction industry falls within the competence of the local authorities except in cases of works undertaken in the federal zone. In this respect, the Committee invited the complainant organization to provide clarifications, if it considered it appropriate, on the aspects of the administrative authority’s decision that it contest, in the light of the latest observations made by the Government [see 329th Report, paras. 80-85].
2. 110. In its communication dated 6 January 2003, the complainant organization states that in August 2002 the Under-Secretariat for Labour instructed the Directorate-General for the Registration of Associations to take note of the amendments to the by-laws, and the latter issued a resolution in which it appears to comply with the aforementioned instruction. However, in its resolution the Directorate-General for the Registration of Associations added that:
   • ... in order for this department to be able to initial each and every part of these amended by-laws with the aim of guaranteeing the legal security of the interested parties, a copy of the said by-laws must be presented to this authority, containing written mention in article 8 of the by-laws of the fact that the trade union’s objectives shall correspond to industrial construction works or enterprises falling within the competence of the federal authorities, or which are being undertaken or are operating in federal zones, or which operate under federal concession, given that the trade union in question is registered with the federal authority.
   • The complainant organization alleges that the resolution issued by the Directorate-General for the Registration of Associations has no legal basis, as it imposes conditions that the union cannot possibly meet, because the text of the proposed addition to the amended by?laws has neither been authorized nor agreed on by the union’s members, it being unlawful for the authorities to attempt to impose their own criteria on the by-laws of workers’ trade union organizations. The resolution which was issued establishes a clause, the sole objective of which is to nullify the amparo decision (enforcement of constitutional rights) that was issued by attempting to impose amendments and objectives which were never agreed on, constituting a violation of the freedom of association of the workers belonging to the trade union and their right to draw up or amend the by-laws of their organizations.
3. 111. In its communication dated 26 May 2003, the Government summarizes its earlier declarations and states that the Progressive Trade Union of Workers of the Construction Industry of the Mexican Republic interprets national legislation inaccurately and, as a consequence, the requirement by the Directorate-General for the Registration of Associations that the Progressive Trade Union of Workers of the Construction Industry of the Mexican Republic provide them with a copy of their by-laws stipulating in article 8 that the objectives of the union correspond to construction works undertaken within federal zones, industries or enterprises falling within the competence of the federal authorities, or which operate under a federal concession, is in accordance with the practice in Mexico whereby the application of labour standards is carried out at two levels – the federal and the local – in accordance with the distribution of powers laid out in article 123, section A, Part XXXI of the Political Constitution of the United States of Mexico and section 527 of the Federal Labour Law. The Progressive Trade Union of Workers of the Construction Industry must specify that its objective corresponds to construction works undertaken within federal zones, industries or enterprises falling within the competence of the federal authorities, or which operate under federal concession, in order to prove that it is operating under the jurisdiction of the federal labour authorities, to safeguard the federal agreement enshrined in article 124 of the Political Constitution of the United States of Mexico, which establishes that those powers not expressly conferred on federal officials are understood to be reserved to the States.
4. 112. The Government emphasizes that in its ruling of 6 June 2002, the First Circuit Tenth Collegiate Court for Labour Affairs decided that the administrative resolution being challenged should be vacated, and, in its place, the Under-Secretariat for Labour should issue another, in which it examines with full jurisdiction the conformity of the proposed by-law amendments and, with full autonomy, soundly and on justifiable grounds, decides what is in accordance with the law, without basing its decision on the provisions of article 360 of the Federal Labour Law as these are not applicable to by-law amendments. It is clear from this that the authority which ruled in the amparo proceedings simply decided that the resolution issued by the Directorate-General for the Registration of Associations on 19 October 2002 should be vacated and that another resolution not based on article 360 of the Federal Labour Law should be issued. The Directorate-General for the Registration of Associations fully respected this final judgement, complying with it through the resolution it issued on 14 August 2002.
5. 113. The Government concludes that the labour authorities have complied with the law and have implemented the rulings handed down by the courts. Furthermore, at no time have they contravened the provisions of Articles 1, 2, 3 and 7 of Convention No. 87, given that the right of the aforementioned organization to organize has finally been fully recognized by the labour authorities, as it was established without the prior authorization of any authority, the organization is completely free to run itself as it sees fit and is now a recognized legal entity. Both the Progressive Trade Union of Workers of the Construction Industry of the Mexican Republic and the labour authorities also brought the actions and lodged the appeals that they considered appropriate and which are provided for by the legal system itself.
6. 114. The Committee takes note of this information. In this respect, the Committee considers that it is for trade union organizations to decide upon the area in which they wish to carry out their activities, be it at the level of the federal district, one or more States or all of these combined. The Committee recalls yet again that the free exercise of the right to establish and join unions implies the free determination of the structure and composition of unions, and that national legislation should only lay down formal requirements as regards trade union constitutions, and the constitutions and rules should not be subject to prior approval by the public authorities [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 275 and 333]. The Committee therefore urges the Government to take measures with a view to the formal acknowledgement of the amendments to the by-laws of the Progressive Trade Union of Workers of the Construction Industry of the Mexican Republic, as decided upon by its members.