Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 337, Juin 2005

1047. The complaint is contained in a communication from the International Confederation of Free Trade Unions (ICFTU) dated 13 May 2004.

1. 1048. The Government sent its observations in a communication dated 25 January 2005.
2. 1049. Mexico has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 1050. In its communication of 13 May 2004, the International Confederation of Free Trade Unions (ICFTU) alleges that the Conciliation and Arbitration Board of the State of Puebla rejected a request for recognition of the Single Independent Trade Union of Workers at TARRANT Mexico (SUITTAR). This request was refused on 3 October 2003; a subsequent appeal was also rejected. The request for recognition was rejected for officious and trivial reasons and without giving the union the opportunity to correct any erroneous administrative procedures which may have occurred with the documents. The reasons given by the Conciliation and Arbitration Board are as follows:
2. – The authorities state that the union did not comply with the requirement to submit copies of the request in duplicate, in accordance with section 366 of the Federal Labour Act (the union states, however, that the documents were submitted with a copy attached as an annex, which, according to union officials, was a duplicate of the original).
3. – Section 365 of the Federal Labour Act states that the union must submit the minutes of the assembly at which it was founded, a list of union members, a copy of its statutes and the minutes of the assembly at which union officials were elected. The Conciliation and Arbitration Board maintains that the union violated this section by forming a union and electing officials at the same assembly and by submitting a single document describing both procedures, rather than two separate documents. However, section 365 makes no reference to anything which prevents a union being founded and its executive body elected at one and the same assembly.
4. – The authorities maintain that the union’s statutes violate section 371.XI of the Federal Labour Act, claiming that, although SUITTAR’s statutes contain provisions concerning the acquisition of assets, they include nothing about the administration and final disposal of these assets. The complainant states that the sections in question stipulate only that statutes must contain regulations for the administration, acquisition and final use of such assets, without explicitly stating what provisions they must contain. The provisions of this section are covered in the union’s statutes, which deal in a full and coordinated manner with matters relating to maintaining an inventory of the union’s assets, collecting union dues, procedures for preparing and submitting reports, the use of union assets and liquidating a union’s assets.
5. – It is also stated that the union does not indicate in the text that it is a “workers’ association” created with the aim of improving and defending workers’ rights. However, the complainant states that section 4 of the statutes describes the aims of the union in detail; furthermore, in the founding minutes, the workers who founded the union are clearly shown; and in one section it is also stated who is eligible to become a member of the union.
6. – Under section 371 of the Federal Labour Act, a union must be made up of workers at a company. However, the documentation indicates that Ms. María Guadalupe Martínez González, who was nominated as Chairman of the Committee for Honour and Justice, does not appear on either the payroll or the list of union members and, since she is not an employee of the company, is therefore disqualified from being a member of the union. The complainant states that this name is a small error in the list of 728 names and that, even supposing that the authorities are in the right, this would simply mean that this person did not fulfil the conditions for union membership or to be assigned a position within the union, and is not sufficient cause for obstructing the will of the 727 founder members.
7. – The resolution passed by the Conciliation and Arbitration Board states that the request violates section 371.VII of the Federal Labour Act, since it does not include disciplinary measures to be applied against union members. In particular, the authorities allege that the statutes do not make reference to the length of periods of suspension. However, the statutes do specifically deal with sanctions and their duration and include each of the points covered in section 371.VII of the Federal Labour Act.
8. – Lastly, the authorities state that the documents were not duly certified. The complainant states that this observation has never been made to the union in order for any possible error to be rectified.
9. B. The Government’s reply
10. 1051. In its communication of 25 January 2005, the Government refers to the allegation made by the International Confederation of Free Trade Unions (ICFTU) which states that the Conciliation and Arbitration Board of the State of Puebla rejected a request for recognition from the Single Independent Trade Union of Workers at TARRANT Mexico (SUITTAR) on 3 October 2003, for allegedly officious and trivial reasons and without giving the union the opportunity to correct any erroneous administrative procedure which may have occurred with the documents. The Government states that, in spite of the fact that the ICFTU has not mentioned this in its communication, SUITTAR brought an action for constitutional protection (amparo) before the Third District Court in the State of Puebla in respect of the resolution of the Local Conciliation and Arbitration Board of the State of Puebla which rejected its registration. However, on 28 November 2003, SUITTAR dropped its amparo request, to suit its interests, so this action was superseded and the amparo ruling given on 8 December became final.
11. 1052. The Government adds that the bodies responsible for granting registration of trade union organizations operating at local level (as in the present case) are the Conciliation and Arbitration Boards, which are tribunals with full jurisdiction formed from an equal number of worker and employer representatives. In this regard, article 17 of the Constitution of the United States of Mexico states that tribunals must make resolutions in an impartial manner, and that federal and local laws shall establish the measures necessary to guarantee the independence of tribunals. If a union considers that registration has been refused for reasons which are not properly founded or motivated, the Mexican legal system provides for actions, procedures and remedies before the competent authorities. In this specific case, the remedy is amparo. The Government states that the nation’s Supreme Court of Justice has maintained the criterion that trade union representatives may legitimately bring actions against refusal to grant registration, in accordance with the following legal verdict:
12. Trade unions: Amparo actions in respect of refusal of registration shall be brought by representatives of a union, not by individual members. Section 374.III of the Federal Labour Act, in stating that legally constituted trade unions are moral persons with the capacity to defend their rights before any authority and take corresponding actions, accords legal personality to those unions which comply with the constitutional requirements set out in section 364 of the Labour Act. By means of the register referred to in section 365 of the same Act, the relevant authority certifies that the act of constituting a union complies with the fundamental legal requirements, but does not grant existence or new legal personality to the union; it follows that it is the unions themselves, through the actions of their legal representatives, that are permitted to bring amparo actions in respect of a refusal to register a union, rather than their individual members, since the persons directly affected by such an action are not the individual members but the moral person which they make up, which enjoys its own legal personality independent of its members.
13. 1053. The Government notes that the Federal Labour Act does not establish mechanisms for the Conciliation and Arbitration Boards to grant trade union organizations the opportunity to correct any mistakes in their register entries, but that it does set out the timescales and requirements for registration, along with the reasons why it may be refused. However, if a workers’ organization does not agree with the decision of the registering authority, it can have recourse to the measures established by the Mexican legal system. The Government further states that the company TARRANT S. de R.L. de C.V. has been closed, and the complaint thus lacks a subject.
14. 1054. To sum up, in the Government’s view, the facts as stated by the ICFTU in its communication do not demonstrate any failure on the part of the Government to comply with the principle of freedom of association and the right to organize enshrined in ILO Convention No. 87. Rather, this is a matter which was brought before the competent legal authorities, which then, with regard for the law, decided not to grant registration to SUITTAR, on the basis that it did not fulfil the requirements set out in labour legislation. The Government adds that workers were able to defend their rights before the competent legal authorities, taking the appropriate legal action and, where appropriate, the measures for challenging legal decisions established by the Mexican legal system. The amparo action is the remedy which was open to SUITTAR under the Constitution and the amparo act to challenge the resolution passed by the labour authority on 3 October 2003, and which it took, within the time and in the manner established in law, by bringing the matter before the competent legal authorities, even though it subsequently dropped its action to suit its interests, and therefore there has been no violation of the principles of Convention No. 87 in this case.

C. The Committee’s conclusions

1. 1055. The Committee observes that, in the present case, the complainant alleges that the Conciliation and Arbitration Board of the State of Puebla (which is a tribunal) rejected a request to recognize the Single Independent Trade Union of Workers at TARRANT Mexico (SUITTAR), and that a subsequent appeal in this respect was also rejected. The complainant states that the request for recognition was rejected for unofficial and trivial reasons and without giving the union in question the opportunity to correct any errors.
2. 1056. The Committee notes that, according to the Government, the measure taken by workers against the decision of the Conciliation and Arbitration Board was to bring an amparo action before the Third District Court of the State of Puebla. According to the Government, the workers were able to defend their rights before the competent legal authorities and take the measures for challenging legal decisions established by the Mexican legal system; in this respect, according to the Government, an amparo action was the remedy available to SUITTAR to challenge the resolution passed on 3 October 2003 by the Conciliation and Arbitration Board, and SUITTAR brought such an action within the time and in the manner established in law. Although the Committee notes that the Government underlines that SUITTAR subsequently dropped its action, to suit its interests, and that the company has been closed, the Committee observes that the complainant raises the issue that, if errors of form or trivial matters occur when a trade union organization requests registration from the competent authority, the organization in question is offered no opportunity to correct any such errors. The Committee also notes that the Government itself states that the Federal Labour Act does not establish mechanisms for the Conciliation and Arbitration Boards to grant trade union organizations the opportunity to correct any mistakes in their register entries. The Committee points out that, although the founders of a trade union should comply with the formalities prescribed by legislation, these formalities should not be of such a nature as to impair the free establishment of organizations [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 248]. This being the case, the Committee recalls that in previous cases it has had to examine instances of delays and obstacles in the free establishment of trade union organizations and certain shortcomings in the legal processes of registering trade union organizations, and that it requested the Government to take measures to ensure that in future, if the body responsible for granting legal recognition considers that there are irregularities in the documentation submitted, an opportunity is provided to the organizations in question to rectify such irregularities [see 334th Report, Case No. 2282 (Mexico), para. 638, approved by the Governing Body at its 290th Session (June 2004)]. The Committee must again reiterate this recommendation and requests the Government to keep it informed of measures taken to follow up on its request.