Informe provisional - Informe núm. 320, Marzo 2000

1. 723. The complaint in this case was contained in a communication from the Academic Workers' Union of the National College of Technical Occupational Education (SINTACONALEP) dated 18 February 1999. Further information was forwarded by the complainant in a communication dated 9 August 1999. The Government sent its reply in a communication dated 13 October 1999.
2. 724. 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. The complainant's allegations

1. 725. In its communication dated 18 February 1999, the Academic Workers' Union of the National College of Technical Occupational Education (SINTACONALEP) states that it was established on 2 February 1997 and requested the General Directorate for the Registration of Associations (General Directorate) to register it as a trade union on 7 March 1997. On 30 April 1997, the General Directorate adopted a resolution in which it declared itself to be incompetent in accordance with the Constitution of the United States of Mexico to judge the substance of SINTACONALEP's request for registration. On 22 September 1997, this decision was reversed by the first district labour court of the federal district which declared the General Directorate to be competent. This decision was confirmed by the first court of arbitration for labour issues of the first circuit on 29 January 1998. Following this decision, the General Directorate studied and evaluated the documentation submitted by the persons concerned and on 24 April 1998 requested the complainant to provide documentation in order to confirm the existence of an employment relationship between the members of the group making the application and the National College of Technical Occupational Education (CONALEP). SINTACONALEP submitted the requested documents on 21 July 1998, that is class accreditation certificates, class timetables, partial evaluation reports and student attendance lists, while protesting against this practice that is not foreseen in the Federal Labour Act and which goes beyond the powers of the General Directorate. On 14 and 21 July 1998, SINTACONALEP once again requested trade union registration in accordance with section 366 of the Federal Labour Act which provides that 60 days following the deposit of the request for registration, the applicant may request the administration to issue a decision within three days, failing which registration is granted automatically. The General Directorate responded to neither of these requests. On 7 September 1998, upon the rquest of SINTACONALEP, the General Directorate asked the General Directorate of the Federal Labour Inspectorate to identify the CONALEP workers. This was done in September and October 1998. On 17 December 1998, the General Directorate adopted another resolution refusing to register SINTACONALEP because its members were not workers within the meaning of the Federal Labour Act. According to the General Directorate, the documents submitted by the applicants did not corroborate the employment relationship necessary under the Labour Code and inspections carried out with the employers' legal representatives showed that (1) the members of this group were not recognized as workers in any of the various work centres; and (2) some of the members of this group were recognized as being providers of occupational services as they had signed contracts for the provision of occupational services, from which it can be deduced that their relationship is of a strictly civil nature and is not an employment relationship. For the General Directorate, the relationship between these persons and CONALEP is of a civil nature and is regulated by the Civil Code rather than by the Federal Labour Act. For these reasons, the members of this group are not workers and may therefore not form a union under the Federal Labour Act. SINTACONALEP denounces the arbitrary and biased attitude of the Mexican authorities responsible for processing requests for trade union registration and objects to the refusal to consider its members as workers, considering that the General Directorate has failed to respect the terms of section 366 of the Federal Labour Act which strictly defines the possible reasons to refuse trade union registration. Under section 366 of the Act, a request can only be refused if: (1) the trade union does not intend to examine and defend the interests of its members; (2) it is not submitted by at least 20 active workers; and (3) the documents required under section 365 of the Federal Labour Act are not submitted. SINTACONALEP fulfils all hese conditions, as demonstrated by its trade union statutes, the fact that its initial request related to 220 workers and also that the documents required under section 365 of the Federal Labour Act were submitted. The General Directorate took a negative decision as a delaying tactic, acting in bad faith and looking for arguments to support the illegal refusal to register. Having invented one cause for incompetence which was rejected by the higher bodies, the General Directorate went on to invent further requirements, such as the need to prove the employment relationship, which is stipulated in neither the Constitution nor the Federal Labour Act. According to SINTACONALEP, the General Directorate is not a jurisdictional authority but an administrative one which is not empowered to settle conflicts between workers and employer(s), an area which comes under the exclusive competence of the Committee for Conciliation and Arbitration, a jurisdictional authority. SINTACONALEP did not ask the registration authority to rule on the question of whether its members were CONALEP workers, but simply to register the trade union as it fulfilled the necessary legal conditions. This refusal to register stands in the way of a collective agreement being adopted, trade union representation with the employer, the recognition of legal personality and is contrary to article 133 of the Constitution and to Convention No. 87. From the very beginning, CONALEP's position has been to make employment conditional upon the workers' rejection of the trade union, by forcing workers affiliated to the union to sign letters of resignation which were sent to the authorities. This practice, together with an administrative procedure that has been in place since March 1997, increases employer pressure on these workers. In Mexico, there are no educational institutions other than CONALEP, where the entire teaching staff - 18,000 teachers - is deprived of its trade union rights, neither are there any precedents of a federal authority openly supporting an irregularity of this kind. CONALEP's 18,000 teachers are denied their trade union rights and many members of SINTACONALEP have been dismissed.
2. 726. In a communication dated 9 August 1999, SINTACONALEP sent additional information indicating that the authorities are excessively delaying addressing the question of trade union registration. The procedures for unjustified dismissal brought by its members have been intentionally delayed, with hearings being scheduled at approximately three monthly intervals, and these hearings sometimes even being suspended by the authorities as a delaying tactic. CONALEP continues to oblige its teaching staff to sign documents denying the existence of an employment relationship and feigning another type of relationship, while the form, the terms and the conditions all correspond to an employment relationship.

B. The Government's reply

1. 727. In its communication dated 13 October 1999, the Government transmits the reply of the Department of Labour and Social Welfare to which the General Directorate for the Registration of Associations reports. In a judicial ruling dated 26 August 1999, the fourth court of arbitration for labour issues of the first circuit confirmed the decision handed down on 17 April 1999 by the second district labour court of the federal district refusing the complainant organization the protection of amparo (enforcement of constitutional rights) against the acts of the Department of Labour and Social Welfare. It must be definitively concluded that the refusal to register SINTACONALEP is in accordance with the legal provisions in force in Mexico, an interpretation confirmed in fact by the two courts. Given that the action for amparo to protect against the encroachment of the constitutional rights of citizens was rejected, it may be said in this case that the individual and collective rights of the complainants have not been undermined and there has been no violation of international conventions as reported to the ILO. The question of the refusal to register the complainant as a trade union has therefore been definitively settled by the competent jurisdictional authorities.

C. The Committee's conclusions

1. 728. The Committee notes that the questions raised by the complainant teachers' organization relate to the following: (1) the refusal to register SINTACONALEP since its establishment on 2 February 1997; and (2) acts of interference and discrimination against the members of this organization by the National College of Technical Occupational Education (CONALEP).
2. 729. The complainant explains that the General Directorate's pretext for refusing the registration is the absence of an employment relationship between the members of the group concerned and the National College of Technical Occupational Education, meaning that the members of this group are not workers in the meaning of the Federal Labour Act. The complainant states that, according to the General Directorate, inspections carried out with the employers' legal representatives showed that while none of the members of this group were recognized as workers within the meaning of the abovementioned Act, some members were recognized as providers of occupational services, as they had signed contracts for the provision of occupational services. It was therefore deduced that their relationship was of a strictly civil nature and did not constitute an employment relationship. SINTACONALEP maintains that it fulfils the legal conditions as demonstrated by its trade union statutes, the fact that its initial request related to 220 workers and that it submitted the documents required under section 365 of the Federal Labour Act. According to SINTACONALEP, the General Directorate took a negative decision as a delaying tactic, acting in bad faith and looking for arguments to support the illegal refusal to register. The Committee notes that, according to SINTACONALEP, having invented one cause for incompetence which was rejected by the higher bodies, the General Directorate went on to invent further requirements, such as having to prove the employment relationship, which is stipulated in neither the Constitution nor the Federal Labour Act.
3. 730. The Committee notes that, according to the Government, the refusal to register SINTACONALEP is in accordance with the legal provisions in force in Mexico and with ILO Conventions, an interpretation that was in fact confirmed by two courts, thus definitively settling this question.
4. 731. The Committee recalls that "by virtue of the principles of freedom of association, all workers - with the sole exception of members of the armed forces and police - should have the right to establish and to join organizations of their own choosing". Nevertheless, in order to draw conclusions on all the elements of information, the Committee requests the Government to transmit the most detailed information on: (1) the manner in which an unregistered organization may defend and promote effectively the interests of its members and carry out activities; and (2) the applicable legislation and whether it sets forth the denial of registration and on what basis.
5. 732. With respect to the acts of interference and the acts of discrimination against the members of SINTACONALEP by CONALEP, the Committee notes that the Government gives no response to the complainant's allegations. The Committee also notes that, according to SINTACONALEP, CONALEP's position was to make employment conditional upon the workers' rejection of the trade union, forcing the workers to sign letters of resignation which were sent to the authorities. Furthermore, many members of SINTACONALEP were dismissed, and the procedures for unjustified dismissal lodged by its members have been delayed. Lastly, according to the allegations, CONALEP continues to make its teaching staff sign documents denying the existence of an employment relationship and feigning another type of relationship, although the form, terms and conditions all correspond to an employment relationship.
6. 733. Given these serious allegations of interference and discrimination by CONALEP, the Committee requests the Government to conduct an inquiry into these acts and to provide detailed and specific information.