Informe definitivo - Informe núm. 334, Junio 2004

1. 623. The complaint is set out in a communication dated 24 June 2003 from the International Confederation of Free Trade Unions (ICFTU).
2. 624. The Government sent its observations in a communication dated 3 February 2004.
3. 625. 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. 626. In its communication of 24 June 2003, the ICFTU states that on 20 January 2003, a total of 162 workers at the enterprise Matamoros Garment S.A. decided to establish the Independent Trade Union of Workers at Matamoros Garment S.A. (SITEMAG) and filed an application with the Local Conciliation and Arbitration Board (JLCA) of Puebla State for legal recognition. The ICFTU indicates that the company opposed the establishment of a new trade union and informed the workers that, as a result of their decision to organize a new union, one of the company’s biggest customers had cancelled its contract.
2. 627. The ICFTU alleges that on 19 March 2003, the JLCA rejected the application for legal recognition by SITEMAG. According to the complainant, the following reasons were given: (1) approval of the attendance list by the SITEMAG organization secretary, although the latter did not attend the meeting in question (the complainant states, however, that the person in question participated in the meeting and his name in abbreviated form is included in the list of participants); (2) one of the two lists of members’ names states the purpose of the assembly, while the other does not; since the lists are not identical, they are not legally valid (the complainant states that the lists are identical, and that one was completed by hand on the day of the meeting, while the other is machine-printed); (3) the lists submitted do not indicate whether the persons attending the constituent meeting were older than 14 years (the complainant indicates that while the age of the signatories was not indicated, a total of 162 workers signed, the minimum number required being only 20, and it seems highly unlikely that the 162 signatories did not include at least 20 who had reached the age of majority); (4) one of the signatories appeared before the JLCA on 16 March 2003 and complained that he had not ratified his signature (the complainant states that it does not know the motives of the worker in question, whose statement does not in any case invalidate the wishes of the other 161 workers who signed); and (5) on 18 March 2003, the company was closed and therefore the minimum number of 20 workers required to form a union was not available (the complainant indicates that the JLCA waited nearly two months to review the company’s position and did so on the day of the temporary closure which was due to loss of production; according to the ICFTU, the closure was agreed with the other trade union at the enterprise, insufficient notice was given, and no evidence of the financial constraints was produced).
3. 628. The ICFTU adds that the JLCA should have allowed SITEMAG an opportunity to correct irregularities or omissions encountered during the process of reviewing the application for legal recognition; however, the trade union received no comments until being notified that the application had been turned down.
4. 629. Lastly, the ICFTU states that the question of legal recognition of SITEMAG is of fundamental importance because although the company Matamoros Garment S.A. is currently closed and has an uncertain future, it has not yet been liquidated and the refusal to recognize the union is a clear violation of freedom of association which sends out a negative message to other workers wishing to set up free and independent unions. Furthermore, the refusal is not an isolated case, given that the JLCA also refused a similar application from a trade union at the KUKDONG enterprise in Atlixco, and in 2002 the JLCA of Coahuila rejected an application for registration from an independent trade union of workers at the ALCOIA FUJIKURA company in Piedras Negras.

B. The Government’s reply

1. 630. In its communication of 3 February 2004, the Government states that the International Confederation of Free Trade Unions (ICFTU) acknowledges the fact that the Independent Trade Union of Workers at Matamoros Garment S.A. (SITEMAG) freely exercised its right to be established as a trade union, with its own legal personality and assets, for the purpose of defending its members’ interests in the form and terms which they considered to be appropriate and in accordance with ILO Convention No. 87. The Government also adds that the ICFTU communication shows that SITEMAG applied for registration to the Local Conciliation and Arbitration Board (JLCA) of Puebla State, by virtue of which it was fully constituted, had drafted its own by-laws and regulations, elected its representatives, organized its own administration and activities and drawn up a programme, in accordance with Article 3, paragraph 1, of Convention No. 87.
2. 631. According to the Government, the decision of 19 March 2003 issued by the JLCA of Puebla State, which is provided as an attachment to the ICFTU communication, shows that the Board acted in accordance with the law in exercising full freedom of jurisdiction with regard to SITEMAG’s application for registration, in accordance with the rules of procedure set out in sections 356, 364 and 365 of the Federal Labour Act, and provided reasoned arguments for its decision. The Government states that SITEMAG was not left without means of defending its rights since the Mexican legal system provides for the opportunity to exercise rights through appeal and other applicable legal procedures to challenge the decision of the JLCA of Puebla State, but in fact the complaint contains no evidence that any such recourse was used against the JLCA decision.
3. 632. As regards the allegations that SITEMAG should have been given an opportunity to correct irregularities and omissions encountered during the review procedure, the Government indicates that the conciliation and arbitration boards are not required to rectify defects in documents submitted by "the trade unions"; protection is only provided where "a worker" makes a written application which is deficient. In this case, substantive and procedural defence of the worker’s interests is provided by the conciliation and arbitration board. The Government maintains that if SITEMAG does not agree with the Board’s refusal to register it, it has recourse to appeal procedures under the law against the decisions which it considers to affect its interests.
4. 633. In conclusion, the Government states that: (1) the issue was examined by the competent bodies which in accordance with the law decided not to register SITEMAG on the grounds that it did not comply with labour legislation; (2) the workers could have defended their rights by recourse to the competent bodies, through legal actions and appeals procedures available under Mexican law; (3) SITEMAG was not prevented from freely exercising its right to be established as a trade union, with its own legal personality and assets, for the purpose of defending its members’ interests in the form and in terms which they consider appropriate; nor has it been prevented from drafting its by-laws and regulations, freely electing its representatives, organizing its administration and activities and formulating a programme, and for these reasons the principles of ILO Convention No. 87 are not considered to have been violated; and (4) the facts alleged by the complainant in its communication do not constitute non-compliance by the Government with the principle of freedom of association and the right to organize enshrined in Convention No. 87.
5. 634. The Government attaches to its reply a communication from the Mexican Confederation of Chambers of Industry (CONCAMIN). The latter states that this is a case in which a group of individuals wishes to set up a new union, typically defined as a works union, and faces a situation in which the employer has no other option than to close his facilities because of the loss of production. The closure was agreed with the Francisco Villa Trade Union, which had the right of collective representation, and it is clear that the real intention behind the move to create a new trade union body was the profit motive; thanks to globalization, it is common for countries with much cheaper labour than Mexico’s and without a developed trade union movement to welcome clothing enterprises, forcing Mexican companies to close down. CONCAMIN adds that the ICFTU fails to recognize the fact that the law allows employers and trade unions to agree on the closure of an enterprise, provided that appropriate compensation is paid, which is what happened in this case. Mexican law allows employers to close down the source of employment if it is not profitable, and this right is guaranteed by article 5 of the General Constitution of the Republic.

C. The Committee’s conclusions

1. 635. The Committee notes the complainant’s allegations that on 20 January 2003, 162 workers at Matamoros Garment S.A. decided to set up the Independent Trade Union of Workers at the Matamoros Garment S.A. enterprise (SITEMAG) and filed an application for legal recognition with the Local Conciliation and Arbitration Board (JLCA) of Puebla State, and that the application was unjustifiably turned down on 19 March 2003.
2. 636. The Committee notes the Government’s statements in this regard to the effect that: (1) in accordance with Convention No. 87, SITEMAG freely exercised its right to be established as a trade union and applied for registration with the JLCA, a competent body; (2) the JLCA decision of 19 March 2003 indicates that the JLCA acted in accordance with the law in examining the application by SITEMAG and providing reasoned arguments for its decision; (3) SITEMAG was not left without means of defending its rights, since the Mexican legal system provides for the possibility of exercising rights through appeal mechanisms and applicable legal remedies against the JLCA decision, but there is no indication in the complaint that use was made of those means; and (4) the conciliation and arbitration boards are not required to rectify deficiencies or defects in documentation submitted by trade unions. The Committee notes the communication of the Mexican Confederation of Chambers of Industry (CONCAMIN) transmitted by the Government with its reply, in which it is stated that: (i) the case in question is one in which a group of individuals is trying to set up an enterprise trade union and is facing a situation in which the employer has no other option than to close down the facilities owing to the loss of production; and (ii) the closure of the facilities - which according to CONCAMIN is provided for under national law - was agreed with the Francisco Villa Trade Union and the workers were paid appropriate compensation.
3. 637. First, the Committee notes that the Government acknowledges the fact that SITEMAG has been refused legal recognition. The Committee notes that, according to the Government, it was not legally a requirement for the JLCA to inform the union of formal errors in the application or to ask it to rectify them before giving its ruling. Nevertheless, the Committee regrets that two months passed before the JLCA gave a ruling on the application for legal recognition for SITEMAG, and that it did so one day after the closure of the undertaking (this point was alleged by the complainant and not denied by the Government). The Committee considers that this delay adversely affected the workers, who decided to set up SITEMAG, given that the delay prevented the trade union from taking part in talks on the consequences of closure for the rights of workers, which was probably a consideration in the decision to set up a new union and is legitimate.
4. 638. In any case, given that according to the complainant the undertaking has been closed but has not yet been liquidated, the Committee hopes that if the company Matamoros Garment S.A. reopens its facilities and SITEMAG applies again for legal recognition, the competent authority (JLCA) will take a decision promptly. The Committee urges 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 so that irregularities may be rectified. In this respect, the Committee recalls that the principle of freedom of association would often remain a dead letter if workers and employers were required to obtain any kind of previous authorization to enable them to establish an organization. Such authorization could concern the formation of the trade union organization itself, the need to obtain discretionary approval of the constitution or rules of the organization, or again authorization for taking steps prior to the establishment of the organization. The formalities prescribed by law for the establishment of a union should not be applied in such a way as to delay or prevent the setting up of occupational organizations [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 244 and 249].