Informe provisional - Informe núm. 96, 1967

1. 100. The complaints are contained in a communication of 15 July 1966 addressed to the I.L.O by the Union of Temporary Workers of Petróleos Mexicanos, of Poza Rica, Veracruz. In three subsequent communications, of 5 September, 3 December and 4 December 1966, the same organisation sent additional information on the case. In a communication of 6 August 1966 support for the said complaints was expressed by the Union of Workers in the Industry of Prawns, Shellfish and Refrigerated Products in General of the Port of Coatzalcoalcos and the Industrial Workers' Union of the Federal Zone and Free Ports of the City of Coatzalcoalcos.
2. 101. All these communications were transmitted to the Government, which sent detailed observations on the case annexed to the communication of 23 November 1966 from the Mexican Delegation to the International Organisations in Geneva, and the additional information annexed to the communication of 2 January 1967 from the same permanent delegation.
3. 102. Mexico has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), but has not ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

1. 103. In the main, the complaints and additional information presented by the complainants reproduce and amplify various allegations relating to the position of temporary workers in the Mexican petroleum industry, allegations which constitute Case No. 457, which the Committee had before it at its meeting in February 1966. On that occasion the Committee recommended the Governing Body to decide to dismiss the complaint because, among other reasons, allegations of infringements of freedom of association made in the case mentioned by a professional organisation (The Federation of Workers' Revolutionary Organisations) were couched in such vague terms that it was impossible to examine the question on its merits; further, that organisation did not avail itself of the possibility open to it of submitting additional information; and, finally, various other communications were not receivable under the procedure in force.
2. 104. In accordance with a decision of the Governing Body, in all cases in which a complaint refers to exactly the same infringements of trade union rights as those on which the Committee has already given a decision, the procedure is not automatically set in motion, but the Director-General is authorised to refer the complaint in the first place to the Committee for a decision as to whether action should be taken or not. Nevertheless, when the allegations, even though they are based in general on the same facts as complaints rejected in an earlier case, are presented in a more precise or more detailed manner than on the first occasion, the Committee has expressed the opinion that the new allegations cannot be rejected on principle but must be examined by the Committee. That is the case with the allegations submitted by the Union of Temporary Workers of Petróleos Mexicanos, which the Committee is examining in the present report.
   • Allegations relating to the Application of Closed Shop or Union Security Clauses
3. 105. In their communications of 15 July and 5 September 1966 the complainants allege that the exclusion clause (section 49 of the Federal Labour Law) and the collective labour contract in force between the state undertaking Petróleos Mexicanos and the Petroleum Workers' Union of the Republic of Mexico prevent freedom of association and the exercise by temporary and permanent workers of the right to form other unions " because they are immediately dismissed and denied the right to return to work in the industry ". In particular, the leaders of the complainant union are alleged to be on a " black list " of workers with whom a contract is not to be made. Vacancies are alleged to be sold " to the highest bidder ", with the result that workers are put forward to fill them who have never worked for the undertaking, to the detriment of temporary workers and contrary to the latter's right to priority under section 111, subsection I, of the Federal Labour Law. According to the complainants, under clause 4 of the collective agreement the undertaking would be - obliged to dismiss without further explanation workers whose dismissal was requested by the union which signed the agreement.
4. 106. Further, the national labour courts are said to have ceased since 1960 to apply the provisions of section 24, subsection 111, of the said law (the rule whereby a written labour contract should state its duration, or whether it is for an indefinite period, etc.). The complain ants state that when the contract does not clearly specify the time, or special or unusual work which has to be done, it should be regarded as being for an indefinite period (permanent); and they add that since 1960 the labour courts have ceased to apply that rule on the pretext that the collective agreement takes precedence. In that way they have given verdicts confirming the termination of the work contracts of certain workers whose names are submitted.
5. 107. The complainants also accuse Petróleos Mexicanos of deducting from the temporary workers' pay the amount of the trade union subscriptions in favour of the trade union which signed the collective agreement, in spite of the fact that the temporary workers are not, according to them, members of the said union. They maintain that the latter, when intervening in the granting of contracts to temporary workers, does not do so as their representative union but as an intermediary or contractor between them and the undertaking. In an annex to the complaint the complainants quote a provision of the Statutes of the Union of Petroleum Workers of the Republic of Mexico, according to which only those temporary workers are recognised as supernumerary members who were registered as such up to 22 November 1939, although in the case of the retirement or death of a supernumerary member one of his relations can be admitted on the same basis.
6. 108. In such circumstances, according to figures given for April 1965, 18,924 temporary workers doing daily work for Petróleos Mexicanos are stated to lack the right to form unions, to make contracts freely either collectively or individually, to be granted recognition of seniority in their work, the acquisition of pension and social welfare rights, participation in the savings fund, help in the education of their children and other benefits which are given to workers with a permanent contract.
7. 109. In their communication of 15 July 1966 the complainants request the intervention of the I.L.O with the Mexican Government with a view to obtaining recognition and registration of the Union of Temporary Workers of Petróleos Mexicanos, and recognition of the right to make, as representative of the temporary workers, a collective contract with the undertaking. They also request such intervention with a view to the reinstatement in permanent jobs of 19 workers named in the complaint, whose dismissal was confirmed by the courts (see paragraph 106 above).
8. 110. In its observation of 23 November 1966 the Government refers, in the first place, to the system of law prevailing in the country, deriving from the Constitution and the laws promulgated in conformity with it, such laws and contracts concluded between parties in conformity with them governing relations between individuals and the State and between individuals themselves. It goes on to cite various regulations of the Federal Labour Law whereby every employer who employs workers belonging to a trade union is obliged to conclude with the latter, when requested, a collective contract; but if there are various unions in one and the same undertaking, the collective contract has to be made with the union with the greatest number of workers in the business (section 43). The collective contract must be in writing and deposited with the Federal Conciliation and Arbitration Board (section 45). The provisions of the collective contract cover all persons working in the undertaking, even if they are not members of the union which made the contract (section 48). The clause in collective contracts whereby the employer undertakes only to accept workers who are trade union members is legal (section 49).
9. 111. The Government points out that the Petroleum Workers' Union of the Republic of Mexico has been registered since 1935, and signed the first collective contract with the state undertaking, Petróleos Mexicanos, in 1942. That agreement has been revised since then, the last revision having taken place in 1965. Clause 4 of the contract lays down that " in cases of definite vacancies or definite newly created posts ... the employer undertakes to fill them ... with members of the union "; clause 5 stipulates that temporary vacancies are to be filled in accordance with the regular promotion procedure, and the lowest posts with staff allocated by the union, etc. Under the provisions of the law and the contract, whenever Petróleos Mexicanos need workers they ask the Petroleum Workers' Union of the Republic of Mexico for them. The Government states that all temporary workers (whose number in fact exceeds the figure given by the complainants) have been engaged on the proposal of that trade union, in conformity with the collective contract, and that they all enjoy legal and contractual social welfare benefits.
10. 112. The Government goes on to state that the complainants do not number 30 persons, and, on the assumption that they work for the undertaking as temporary workers, their engagement could only have occurred on the proposal of the Union of Petroleum Workers of the Republic of Mexico.
11. 113. It is not correct, says the Government, that the exclusion clauses applying to engagement and dismissal (clauses 4 and 35 of the collective agreement), agreed in conformity with sections 49 and 236 of the Federal Labour Law, prevent freedom of association, since they pose no obstacle to the formation of other organisations, membership of such organisations, or the drafting of their statutes, etc. Such clauses, far from limiting freedom of association, establish solid bases, in the Government's view, for defending the collective interest and strengthening the trade unions. It is not correct, the Government continues, that temporary workers are dismissed or that they are denied the right of returning to work in the industry. At the same time, the unions which they may form must be without prejudice to third parties, and the undertaking cannot accept staff other than that proposed to it by the union which signed the collective agreement, of which the exclusion clause, being legal, must be respected, in accordance with the principle laid down in Article 8 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). The provisions of the Federal Labour Law, relating to the individual rights of workers (for example the priority indicated in section 111, subsection 1, of the Federal Labour Law), are only applicable when such workers do not belong to a union and are not protected by a collective agreement; when that is the case, the provisions having preferential application are those of the collective agreement and those of the law to which reference has been made, in accordance with the rulings of the Supreme Court of Justice. The part of the complaint in which the union which signed the collective agreement is alleged to sell vacancies to the highest bidder raises a point of which the Mexican Government says it has no cognisance.
12. 114. As regards the application of section 24, subsection III, of the law, the Government indicates that, for the same reasons of legal validity of the exclusion clause and the rulings of the Supreme Court, that part of the allegations which refers to this matter is refuted. Moreover, Petróleos Mexicanos always state in their labour contracts either their duration, or the fact that they are for an indefinite period.
13. 115. The Government goes on to say that if Petróleos Mexicanos did deduct trade union subscriptions from some members of the complainant union (which is not recognised by the undertaking), it was because those workers were engaged on the proposal of the union which signed the collective agreement and which had requested the undertaking to make such deductions in accordance with clause 200 of the agreement. On the other hand, it is not certain that the Petroleum Workers' Union of the Republic of Mexico acted as an intermediary in the engagement of temporary workers. In conformity with the exclusion clauses the union proposes both permanent workers and temporary workers, and the undertaking is not authorised to investigate whether the persons proposed are members of the union or not.
14. 116. In its conclusions the Government affirms that the complainants have not suffered any suppression of freedom of association and that no concrete example has been given of any infringement of any provision of Convention No. 87. In point of fact the matters forming the subject of the complaint (validity of the collective agreement and application of the exclusion clauses) are connected rather with the questions dealt with in the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), which has not been ratified by Mexico.
15. 117. Finally, in its communication of 2 January 1967, the Government transmits the complete text of the ruling handed down by Special Group No. 7 of the Federal Conciliation and Arbitration Board on 9 November 1966, a ruling involving, inter alia, the striking-off the Register of the Union of Temporary Workers of Petróleos Mexicanos, Local 1 (of Minatitlán, Veracruz), which was registered on 5 January 1945. The writ petitioning that the said union be struck off the Register was taken out by the Petroleum Workers' Union of the Republic of Mexico on the grounds that, among other considerations, the petroleum industry is entrusted exclusively to a decentralised state undertaking (Petróleos Mexicanos), whose collective agreement with the petitioning union contains an exclusion clause which prevents any legal possibility of the existence of another union in the said industry. In the preamble to the findings of the Conciliation and Arbitration Board it is stated that of the 161 persons on the membership roll of the defendant union only 23 were identified, and of them, only three were found to be working in the undertaking in March 1965, so that the requirement of the law whereby a union in an undertaking must have at least 20 members working in the said undertaking was not fulfilled. The Conciliation and Arbitration Board appears also to have accepted the argument in the petition to the effect that the existence of the exclusion clause prevents the formation of a new union in connection with the undertaking. Further, the Conciliation and Arbitration Board decided that it should reject the plea put forward by the Union of Temporary Workers of Petróleos Mexicanos, Local 1 (of Minatitlán), to the effect that it should be recognised as having the right to make collective contracts with the undertaking and be paid a sum representing the union contributions previously deducted.
16. 118. Recapitulating the main points, the Committee notes that the Mexican petroleum industry is a state monopoly under a decentralised undertaking (Petróleos Mexicanos), which has signed a collective agreement with the Petroleum Workers' Union of the Republic of Mexico, an agreement which establishes in favour of that union certain trade union protection or exclusion clauses in relation to the engagement of workers and the deduction of contributions. The complainants state that they represent workers engaged on a non-permanent basis to work in the undertaking, who, according to them, are not members of the union which signed the collective agreement (nor can be, as the latter has practically closed its register to all temporary members) and that consequently they should have the right to form their own union, entitled to make collective agreements with the undertaking, and to have the exclusive right of collecting trade union subscriptions from their members. The complainant organisation has not submitted statistics of the number of its members who work in the undertaking, and only mentions the total number of temporary workers. The Government refers to the legislation in force, under which the undertaking must make the collective agreement with the union which has the largest number of workers in the business, the collective contract being valid for all persons working in the undertaking, even if they are not members of the union which signed it, and the exclusion clause being expressly permitted as regards the engagement of workers. At the same time the union of temporary workers, of which the registration as a company-based union was cancelled by the Federal Conciliation and Arbitration Board, appears to be distinct from the organisation which submitted the complaint for examination by the Committee. The complainant organisation in this case in fact appears to indicate that it did not obtain its registration, but it fails to submit further details on this particular point (for example whether it presented an application and if so with what result).
17. 119. The Committee is thus really confronted with a conflict between unions over the right to represent the temporary workers or some of them. According to the Government engagement of these workers is carried out in conformity with the exclusion clause for which provision is made in the collective agreement; and the deduction of union subscriptions, if it is made in respect of some workers who belong to the complainant organisation, is based on another protection clause in the same agreement. Of the remaining allegations made by the complainants, one (on the application of section 111, subsection I, of the Federal Labour Law) is connected with the precedence of the exclusion clauses over the general provisions of the law and should therefore be considered in conjunction with the main question.
18. 120. Another of the allegations refers to the failure of the Courts to recognise the permanent character of certain individual labour contracts-a matter which in itself does not appear to raise any question relating to the exercise of trade union rights proper. Finally, the allegation with regard to the trafficking said to take place in connection with vacant posts appears to concern the orthodoxy of the procedures followed in the management of its affairs by the trade union which signed the collective agreement, a matter which would appear to be the concern of the members of that union-who, in any case, have the right to require respect, on the one hand, for the union statutes should they be infringed, and, on the other, for the principle laid down in paragraph 1 of Article 8 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), whereby workers and their organisations are obliged to respect legality.
19. 121. In the past the Committee has had to examine cases where the deduction of union contributions and other forms of union protection were instituted, not in virtue of the legislation in force but as a result of collective contracts or established practice existing between both parties. In such cases the Committee declines to examine the allegations made, basing its reasoning on the statement which appears in the report of the Committee on Industrial Relations, appointed by the International Labour Conference in 1949, according to which the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), can in no way be interpreted as authorising or prohibiting union security arrangements, such questions being matters for regulation in accordance with national practice. In adopting the Committee's report the Conference adhered to this point of view.
20. 122. In the present case, from the facts submitted by the Government, it appears that the monopoly granted to the Petroleum Workers' Union of the Republic of Mexico as regards the proposing of new workers, and the clause which provides for deduction of trade union contributions from workers in the undertaking on behalf of the said union, were not the result of legislation but were embodied in a collective agreement.
21. 123. In these circumstances, for the reasons indicated in paragraphs 118 to 122 above, the Committee recommends the Governing Body to decide that these allegations do not call for further examination.
    • Allegations relating to the Attitude of a Public Official
22. 124. In their communication of 15 July 1966 the complainants accuse the Under-Secretary of Labour and Social Welfare of failing to ensure the implementation of the Federal Labour Law, and mention in this connection the case of two workers who submitted a request to the Federal Conciliation and Arbitration Board. No final rulings on their cases have been made although eight years have passed. They also mention the case of another worker, whose file was, " for no reason, and incorrectly, transferred to the city of Jalapa ".
23. 125. In its reply the Government states that the accusation made with regard to the said Under-Secretary is false and, moreover, has no connection with questions dealt with in the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). It adds that the Federal Conciliation and Arbitration Board is an autonomous jurisdictional body, which cannot be influenced in its rulings by outside officials.
24. 126. The Committee considers that the complainants have not submitted, in respect of the allegations in question, the truth of which is denied by the Government, any proof that they in themselves raise any matter connected with the exercise of trade union rights.
25. 127. In these circumstances the Committee recommends the Governing Body to decide that these allegations do not call for further examination.
    • Other Allegations
26. 128. In its communication of 4 December 1966 the Union of Temporary Petroleum Workers states that on 2 December 1966 agents of the federal police tried to arrest Gabriel Rivera Rio, President of the union's Committee of Honour and Justice, on the basis of a charge made by the Petróleos Mexicanos to the effect that the said trade union member belonged to an " international Trotskyist quartet ". Further, in their communication of 3 December 1966, the same complainants state that the Petróleos Mexicanos had offered members of the complainant union the lowest positions on the staff with the object of " solving the problem submitted to the I.L.O.". They add that this proposal, which is said to form part of the tactics employed by the undertaking to the detriment of the said members, was inacceptable in view of the fact that those workers had more than ten years' seniority in the industry and had specialised in their jobs, and if they accepted the lowest places they would have to start again as general labourers.
27. 129. The two communications mentioned in the preceding paragraph were communicated to the Government by letters dated 14 and 22 December 1966 respectively.
28. 130. Up to the present no observations have been received from the Government regarding the allegations mentioned in paragraph 128 above.
29. 131. In these circumstances the Committee recommends the Governing Body to request the Government to be good enough to furnish its observations on the allegations in question.