Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 335, Noviembre 2004

1. 1020. The complaint is contained in a communication from the National Trade Union of Electrical and Allied Workers of the Mexican Republic (SNIPES) dated 8 October 2003. The Government sent its observations in a communication dated 22 April 2004.
2. 1021. Mexico has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); it has not ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegation

1. 1022. In its communication of 8 October 2003, the National Trade Union of Electrical and Allied Workers of the Mexican Republic (SNIPES) states that it is a national industry-wide trade union with legally approved by-laws and is registered with the Secretariat of Labour and Social Security of the Federal Government of the United Mexican States.
2. 1023. The complainant organization states that on 11 November 2001 it held its ninth extraordinary congress to adopt comprehensive amendments to its by-laws and elect its executive committee. The amendments to the by-laws were adopted by an absolute majority of votes of the members of the trade union, with section 3bis amended to read as follows:
   • Section 3bis. The following persons may be members of the trade union: permanent, casual and temporary workers providing services in any enterprise, company, factory or workplace engaged in manufacturing electrical parts or auto parts, fuses, connectors, switches, cables, conductors, cable television, radio broadcasting, assembly of electrical parts, the manufacturing of radios, televisions, light bulbs and electronics in general, electrical parts repair shops, and anything containing electricity for use in the home, industry and the State and in work in the electrical industry in general, such as electrical and electricity installations, including the generation, distribution, sale, transformation and transmission of electrical energy and any infrastructure works in general, and allied workers, in the Mexican Republic.
3. 1024. The complainant states further that, irrespective of the above, the Government, through the National Directorate for the Registration of Associations of the Secretariat of Labour and Social Security, issued an illegal decision stating that it: “refuses to take note of the amendment to section 3bis of the by-laws concerning the extension of the coverage of the trade union in question”. In the view of the complainant organization, the foregoing represents interference in the internal affairs of the organization which amounts to a system of corruption and licensing of trade unions. Moreover, this decision infringes the provisions of sections 357 and 359 of the Federal Labour Act, as well as those of ILO Convention No. 87.
4. 1025. The complainant organization states further that on 23 October 2002 it filed an appeal for review with the General Directorate for the Registration of Associations against the decision handed down on 6 September 2002. In reply to this appeal, the Under-Secretary for Labour of the Secretariat of Labour and Social Security issued a decision which, among others, stated the following: “The decision dated 6 September 2002, contained in communication No. 21122-2724, is upheld in its entirety on the grounds that it was well founded and justified.”
5. 1026. The complainant organization considers that the Government of Mexico should not refuse to take note of the amendments to its by-laws, which were approved at its congress by a majority vote of its members, given that it should abstain from obstructing and hampering the free exercise of freedom of association of the members of the complainant organization.

B. The Government’s reply

1. 1027. In its communication of 22 April 2004, the Government states that on 29 January 2002 the National Trade Union of Electrical Workers requested the General Directorate for the Registration of Associations of the Secretariat of Labour and Social Security to take note of the amendments to its by-laws agreed on at its ninth extraordinary congress. These included an amendment of section 3bis concerning the extension of its coverage.
2. 1028. The Government adds that on 6 September 2002 the General Directorate for the Registration of Associations issued a decision in which it refused to take note of the amendment of section 3bis of the by-laws of the National Trade Union of Electrical Workers, leaving the other amendments unaffected.
3. 1029. In its decision, the General Directorate for the Registration of Associations pointed out that section 3bis of the by-laws extended the coverage of the trade union to include, in addition to the activities recognized when it had been registered and which related to the electrical industry, other activities such as “cable television, radio broadcasting …” which require a federal contract or concession, as provided in article 123, paragraph XXXI, clause (b), point 2, of the Political Constitution of the United Mexican States and section 527, paragraph II, point 2, of the Federal Labour Act. Moreover, activities relating to “the manufacturing of radios, televisions, ... electronics in general, electrical parts repair shops, ... and any infrastructure works in general ...” come within the remit of local government and are covered by section 529 of the Federal Labour Act; it is hence inappropriate to include these activities in section 3 of the by-laws given that this distorts the original nature of the union, since these activities are not of the same nature as those that constitute the raison d’être of this trade union.
4. 1030. The Government states that the National Trade Union of the Electrical Industry filed an appeal for a review against the decision of the General Directorate for the Registration of Associations with the Under-Secretary for Labour of the Secretariat of Labour and Social Security, which upheld in its entirety the decision of the General Directorate for the Registration of Associations.
5. 1031. Section 357 of the Federal Labour Act stipulates that workers and employers have the right to establish organizations without previous authorization. Article 2 of ILO Convention No. 87 also provides that workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organization concerned, to join organizations of their own choosing without previous authorization.
6. 1032. In this particular case, the National Trade Union of the Electrical Industry exercised its right to establish itself as a trade union, as stated in its communication.
7. 1033. Section 359 of the Federal Labour Act and Article 3 of Convention No. 87 provide that trade unions have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organize their administration and activities and to formulate their programmes. The National Trade Union of the Electrical Industry has legally registered by-laws, which were amended at its ninth extraordinary congress. In addition, it has freely elected its representatives, organized its administration and activities and formulated its programme. It is clear from the above that the National Trade Union of the Electrical Industry fully exercised its right laid down in the abovementioned provisions.
8. 1034. The Government points out that the National Trade Union of the Electrical Industry filed an appeal for protection of its constitutional rights (amparo) against the refusal by the General Directorate for the Registration of Associations to take note of the amendment of section 3bis of its by-laws and the decision of the Under-Secretariat for Labour to uphold this administrative act. The appeal for amparo was examined by the competent district labour court.
9. 1035. On 10 November 2003 the competent district labour court ruled that the National Trade Union of the Electrical Industry belongs to the electrical industry sector (which comes within the federal remit) and hence, in extending its coverage and amending its by-laws, it cannot include other sectors which come within the local remit under section 527 of the Federal Labour Act, and different jurisdictions cannot be combined. It therefore denied the protection of the federal justice system to the National Trade Union of the Electrical Industry.
10. 1036. On 23 December 2003, the National Trade Union of the Electrical Industry filed an appeal for review against the ruling denying it constitutional protection. On 20 February 2004, the competent collegiate circuit court for labour affairs upheld the ruling handed down by the district court denying protection to the National Trade Union of the Electrical Industry and declared the case definitively closed, so that the decision of the General Directorate for the Registration of Associations remains in force.
11. 1037. In this particular case, the Government recalls that the Committee on Freedom of Association has stated that:
    • Legislative provisions which regulate in detail the internal functioning of workers’ and employers’ organizations pose a serious risk of interference by the public authorities. Where such provisions are deemed necessary by the public authorities, they should simply establish an overall framework in which the greatest possible autonomy is left to the organizations in their functioning and administration. Restrictions on this principle should have the sole objective of protecting the interests of members and guaranteeing the democratic functioning of organizations. Furthermore, there should be a procedure for appeal to an impartial and independent judicial body so as to avoid any risk of excessive or arbitrary interference in the free functioning of organizations [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 331].
12. 1038. The Government therefore considers that the labour authorities have acted in conformity both with Mexican labour legislation and with ILO Convention No. 87. Moreover, the National Trade Union of the Electrical Industry made use of the available legal remedies by appealing against the decisions by which it deemed itself affected, before an impartial and independent judicial body, the Judicial Branch of the Federation.

C. The Committee’s conclusions

1. 1039. The Committee observes that the complainant organization, the National Trade Union of Electrical and Allied Workers of the Mexican Republic, objects to decisions by the General Directorate for the Registration of Associations of the Secretariat of Labour and Social Security, of the latter Secretariat and of the district labour court refusing to “take note” of the amendment of section 3bis of the by-laws of the complainant organization, which was intended to extend its coverage. The Government states that, as is clear from the administrative decisions and the ruling handed down in this case, the sectors to which the complainant organization wishes to extend its coverage fall within the remit of local government, according to section 527 of the Federal Labour Act (in particular, the amendment to the by-laws is aimed at extending trade union representation to cable television, radio broadcasting, and the manufacturing of radios, televisions, light bulbs and electronics in general, instead of being confined to the electrical industry), while the complainant organization belongs to the electrical industry, which falls within the federal remit, and different jurisdictions cannot be combined.
2. 1040. The Committee notes that the Government: (1) refers to the different stages in the administrative and judicial proceedings initiated in relation in this case; (2) emphasizes that the labour authorities acted in conformity both with national legislation and ILO Conventions, and that the parties have been able to exercise their rights in accordance with the law; (3) states that under sections 357 and 359 of the Federal Labour Act, workers have the right to establish trade unions without previous authorization and to draw up their by-laws. The Committee also notes that the last judicial decision denied the complainant organization constitutional protection and the protection of the justice system.
3. 1041. As it has done in previous cases [see for example 330th Report, Case No. 2207 (Mexico), para. 907], the Committee recalls 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 emphasizes that the complainant trade union is a national trade union and that, for the purposes of the guarantees laid down in Convention No. 87, it is irrelevant whether it seeks to cover only a federal sector, such as electricity, or also a local sector, such as radio, television or electronics in general. The Committee therefore requests the Government to take steps to register the amendments to the by-laws requested by the complainant organization, and to keep it informed in this respect. Nonetheless, the Committee must emphasize that the fact that the by-laws involve an extension of the coverage of the trade union does not in any way prejudge its representativeness in the sectors covered and thus its right to bargain collectively with the employers or employers’ organizations concerned. Lastly, the Committee emphasizes that the fact of being able to bring a case before a judicial body in the event of refusal by the authorities to recognize amendments to trade union by-laws does not constitute an absolute guarantee of application of the Convention, in so far as the judicial authority may base its decision on legal provisions or principles which may not be in conformity with the provisions of Convention No. 87.