Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 357, Junio 2010

1. 731. The complaint is contained in a communication from the Union of General Insurance Sales Agents in the State of Jalisco (SAVSGEJ) dated 19 November 2008. In communications dated 12 December 2008, 16 January 2009 and 8 July 2009, the complainant sent additional information and new allegations. The National Workers’ Union (UNT) supported the complaint in a communication dated 5 October 2009.
2. 732. The Government sent its observations in a communication dated 22 February 2010.
3. 733. 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. 734. In its communications of 19 November and 12 December 2008 and 16 January and 8 July 2009, the SAVSGEJ alleges that since its establishment in October 2007 (registration file No. 235/2007, dated 16 October, before the Conciliation and Arbitration Board (JLCA) of Jalisco State) it has been subjected to violations of its trade union rights. The complainant states that the Board cancelled the registration requested on 6 December 2007. The union filed an application for judicial guarantee with the Third District Court for Administrative Affairs of Jalisco State. In addition, the court communicated to the Board a ruling stating that the union’s representative enjoyed judicial protection, overturning its decision of December 2007, and giving a new ruling regarding the registration application. The Board applied for a review of the ruling given by the Third District Judge for Administrative Affairs of Jalisco State on 26 February 2008, but that application was rejected by a decision dated 4 April 2008 of the Second Collegiate Court for Labour Law of the Third Circuit of Jalisco State. As a result, registration was granted under registration No. 1608 of Trade Union Registry 7 on 23 April 2008. The union in question is the country’s first union for insurance agents. The complainant reports that, since the union was registered, a number of insurance companies have sought to have the registration cancelled (file No. 790/2008/5J).
2. 735. The complainant alleges that once the union obtained registration, the Allianz México SA insurance company, from 13 May onwards, blocked the operating system of employees who were union members and subsequently dismissed the following union officials: María del Socorro Guadalupe Acevez González, General Secretary; Rossana Aguirre Díaz, secretary for records and agreements and trade union organization; María Cristina Vergara Parra, spokesperson; and union members Alejandro Sandoval García, Alejandro Casarrubias Iturbide, Fernando Pérez Martínez, Jorge Rincón García and Lázaro Gabriel Téllez Santana. The company informed the dismissed employees that it would allow them to continue working if they left the union. Three of the dismissed trade unionists (Alejandro Sandoval García, Fernando Pérez Martínez and Jorge Rincón García), as a result of financial pressures, agreed to those terms and signed a letter which allowed their reinstatement. The complainant adds that the union members employed at Mapfre Tepeyac México received telephone calls in September 2008 from individuals asking them whether they belonged to the union. Subsequently the company suspended their Internet access and dismissed the following union officials: Bertha Elena Flores Flores, president of the honour and justice committee; Elodia Hernández Orendain, member of the honour and justice committee; María Cristina Vergara Parra, spokesperson; and union members Alejandro Casarrubias Iturbide, Javier Badillo Flores and Martín Ramírez Olmedo.
3. 736. The complainant states that the claims made to the local Conciliation and Arbitration Board of Jalisco, for unjustified dismissals of the trade union officials and members referred to, have not been resolved. They also allege that the process for cancelling the union’s registration is being pursued, although this was, in their view, wrongly approved because there is no provision for such a procedure in the Federal Labour Law. The proceedings are having an effect on the union since other insurance agents are afraid to join.

B. The Government’s reply

1. 737. In its communication of 22 February 2010, the Government states that it appears, from the documentation presented to the ILO by the SAVSGEJ, that the individuals who were supposedly victims of anti-union discrimination are all insurance agents and that, in Mexico, the case of insurance agents is covered principally by the Federal Labour Law, section 285 of which stipulates that:
   • Section 285. Commercial and insurance agents, salespersons, travelling sales agents, sales publicists and promoters and similar occupations, are employees of the enterprise(s) for which they provide services if their activity is permanent, unless they do not carry out the work themselves or intervene only in isolated activities.
2. 738. Section 23 of the General Law regarding mutual insurance institutions (LGISMS) defines insurance agents in the following terms:
   • Section 23. For the purposes of this Law, insurance agents shall be deemed to include physical or moral persons who are involved in the conclusion of insurance contracts through the exchange of proposals and acceptances thereof, and in providing advisory services on concluding, maintaining or amending such contracts, at the convenience of the contracting parties …
3. 739. In order to properly regulate the activities of mediation on the conclusion of insurance contracts, section 9 of the Regulations covering insurance agents (RASF) empowers the National Insurance and Surety Commission (CNSF) to grant authorization to persons wishing to act in the capacity of insurance agents. Such authorizations, under the terms of section 23 of the LGISMS, are non-transferrable and are granted, subject to certain legal and regulatory requirements, to the following: (a) physical persons attached to an insurance company by an employment relationship, under the terms of sections 20 and 285 of the Federal Labour Law and authorized to promote the conclusion of insurance policies on behalf of the institutions concerned; (b) independent persons not employed by the insurance companies who operate freely under a commercial contract; and (c) persons who form public limited companies for the purpose of carrying out such activities.
4. 740. In accordance with section 14 of the RASF, authorization for physical persons takes the form of an official card containing the agent’s name, indication as to whether he or she is self-employed, or is employed by an insurance company, the particular activities or areas in which he or she may mediate, date of validity, period of validity, and a photograph.
5. 741. Physical persons or agents attached to an insurance company provide services on a personal, subordinate and permanent basis to one insurance company under an employment contract, are required to adhere to a timetable, guidelines and instructions, and have a specific place of work. Authorizations of this type must be sought from the CNSF by the insurance companies themselves, in accordance with section 11 of the RASF.
6. 742. On the other hand, independent agents (section 23 of the LGISMS) are attached to the insurance companies by commercial contracts and carry on their activities freely, with no set timetable, instructions or subordination, and are not required to broker any specific number of policies, and may even provide their services through auxiliaries. They are not subject to the authority of any one company and can indeed, without any restriction, conclude similar contracts with different insurance providers, as they have their own client portfolio. That is to say, they are subject to no more restrictions than those set out in their own commercial contracts and in the relevant laws and regulations (with the exception of pension insurance policies based on social security law).
7. 743. For this reason, the card issued by the CNSF is an administrative document by which the Mexican Government licenses and monitors persons deciding to take up brokering of insurance contracts to conclude commercial contracts with different insurance providers in which one of the parties (the company) provides products and services and the other (the insurance agent), a portfolio of potential clients.
8. 744. According to the CNSF, the persons named in the complaint (Alejandro Casarrubias Iturbide, Alejandro Sandoval García, Bertha Elena Flores Flores, Elodia Hernández Orendain, Fernando Pérez Martínez, Javier Badillo Flores, Jorge Rincón García, María Cristina Vergara Parra, María del Socorro Guadalupe Acevez González, Martín Ramírez Olmedo and Rossana Aguirre Díaz) have current authorization as independent insurance agents; Lázaro Gabriel Téllez Santana had such an authorization which has since expired. The application for union registration submitted by the insurance agents’ union indicates that Alejandro Casarrubias Iturbide, Alejandro Sandoval García, Bertha Elena Flores Flores, Elodia Hernández Orendain, Fernando Pérez Martínez, María del Socorro Guadalupe Acevez González, Lázaro Gabriel Téllez Santana, Patricia de la Paz Nahoul Gutiérrez, Héctor Chávez Reyna, Guillermo Ascencio Deyra and Rossana Aguirre Díaz, among others, all members of the complainant union, have concluded more than one commercial contract with a number of insurance companies and may therefore carry on their activities without restrictions, other than those specified in the contracts themselves.
9. 745. The Government states that the complainant has presented allegations concerning harassment and dismissals of union members by the respondents (insurance companies), on the one hand, and the application presented by a number of insurance companies to annul the registration of the complainant union on the other.
10. 746. The Government states that in all written documentation presented by the complainant, it indicates possible unjustified dismissals of insurance agents by insurance companies on grounds of their union membership. It is claimed that there has been harassment in the form of telephone threats of dismissal and demands to resign from the union. In this regard, the Government states that the allegations made by the union concerning harassment of Alejandro Sandoval García, Jorge Rincón García and Fernando Pérez Martínez to make them leave the union suggest that, although letters addressed to the General Secretariat of the union signed by those members and stating their intention to leave the union have been submitted, it is also true that those letters do not indicate that there is any pressure to make the individuals in question resign from the union, nor do they suggest that they were pressured by the insurance companies for which they work; it is considered that if it is their wish to remain in the union in question, they can join whenever they express their wish to do so.
11. 747. As regards the alleged harassment to force them to leave the union, of which a number of union members claim to have been victims, consisting of blocking Internet keys and requests to sign letters of resignation from the union, the Government notes that the union presented as evidence an unsigned written document without any seals or anything to indicate who had drawn it up, which makes it insufficient as evidence. Nor is any indication given of the particular circumstances of time and place that would lead to the conclusion that the union members at any time suffered anti-union practices or, if such practices took place, who was responsible.
12. 748. As regards the alleged dismissals of Lázaro Gabriel Téllez Santana, Javier Badillo Flores, María del Socorro Guadalupe Acevez González, María Cristina Vergara Parra and Martín Ramírez Olmedo, the Government states that the union provides letters stating the decision of some insurance companies to terminate the commercial contracts concluded with union members. Those letters do not indicate possible dismissal since, as stated previously, the independent insurance agents in question have commercial contracts with more than one company. With regard to the written documents presented, it is observed that the contractual relationship is being terminated in the interest of the company, but that does not mean that the agent is restricted in carrying on his or her activities, restricted with regard to the other commercial contracts with other insurance companies, or prevented from concluding new contracts. On the contrary, it has direct repercussions for the insurer because the agent may recommend his portfolio of clients, services and products to other companies with which he has a contract. His activity as an independent insurance agent is therefore assured, not by the commercial contracts, but through the insurance agent’s card granted by the CNSF.
13. 749. It must also be noted that proceedings are currently still under way before the JLCA in connection with applications from María del Socorro Guadalupe Acevez González, María Cristina Vergara Parra and Rossana Aguirre Díaz against the Allianz de México SA insurance company, in connection with alleged unjustified dismissals (case files 1254/2008-S, 1097/2008-H and 1222/2008-F, respectively), now being examined by the Fifth Special Conciliation and Arbitration Board. These will be resolved in accordance with the Law in question.
14. 750. Article 123, section XXII, of the Political Constitution of Mexico, provides certain safeguards for workers’ rights and, with the Federal Labour Law, lays down the compensation applicable, and the procedures to follow, in the event of any action by individuals involving a violation of established laws and regulations, in particular those concerning freedom of association. Trade union representatives and members may seek recourse to the courts and the competent administrative authorities within the time limits allowed, to obtain resolution of any disputes and to defend the interest of the organization they represent.
15. 751. The supplementary documentation presented by the General Secretariat of the Insurance Agents’ Union, including a number of complaints before the National Commission for the Protection of Users of Financial Services (CONDUSEF), authorizations, and an email addressed to a representative of Allianz México SA, do not relate to any fact or circumstance allowing to deduce anti-union discrimination, and make clear two points, namely: (1) the insurance agents act independently as brokers between the insurance companies and the clients in their client portfolio; and (2) the insurance agents may advise their clients regarding the policies best suited to their needs, with no obligation to remain attached to any particular insurance company.
16. 752. As regards the claim presented by a number of insurance companies requesting cancellation of the union’s registration, the Government states that it will pay close attention to any decision of the judicial authorities requiring adjustment in the interest of compliance with the principles of freedom of association.

C. The Committee’s conclusions

1. 753. The Committee notes that, in the present case, the complainant alleges that, since it was founded, its officials and members have been subjected to violations of their union rights and specifically refers to the dismissal of the following union officials: María del Socorro Guadalupe Acevez González, General Secretary; Rossana Aguirre Díaz, records and agreements secretary; María Cristina Vergara Parra, spokesperson; and members Alejandro Casarrubias Iturbide, Lázaro Gabriel Téllez Santana, and another three members employed by the Allianz México SA insurance company (according to the complainant, these three members resigned from the union and were subsequently reinstated at work after being subjected to pressure), as well as the dismissals of the following union officials: Bertha Elena Flores Flores, president of the honour and justice committee; Elodia Hernández Orendain, member of the honour and justice committee, María Cristina Vergara Parra (also dismissed by Allianz México SA), spokesperson, and members Alejandro Casarrubias Iturbide (also dismissed by Allianz México SA), Javier Badillo Flores and Martín Ramírez Olmedo of the Mapfre Tepeyac México insurance company. The Committee also notes that, according to the complainant, claims have been filed with the Local Conciliation and Arbitration Board of Jalisco State in connection with alleged unjustified dismissals of the union officials and members referred to here, which have yet to be resolved, and that the officials and members in question object to the continuation of proceedings to cancel union registration, given that those proceedings are not provided for in the Federal Labour Law. The complainant states, lastly, that the proceedings to cancel the union’s registration are creating a climate of fear that is preventing workers from joining the union.
2. 754. As regards the alleged pressure put on trade unionists to make them leave their union, and allegations that, in the case of three of them, their continued employment was made conditional on their leaving the union, the Committee notes the Government’s statements to the effect that: (1) the allegations presented by the union in relation to harassment suffered by union members who decided to leave the union are not such as to lead to the conclusion, on the basis of the documentation presented, that there was pressure from any individual to induce these individuals to leave the union, or that they were subjected to pressure by the companies for which they worked; (2) as regards the alleged harassment to induce individuals to leave the union, of which a number of union members claim to have been victims, in the form of blocking of Internet access and demands to sign letters of resignation from the union, the union has presented no adequate evidence that would lead to the conclusion that the members in question were at any time subjected to anti-union practices, or indicate who was responsible for any such practices; and (3) the national system of courts provides judicial remedies in any cases of violation of freedom of association. The Committee notes the contradiction between the allegations and the Government’s reply. The Committee notes that it is not always possible to prove that there has been pressure of the type alleged in this case but, as the Government has indicated, those concerned are able to instigate legal proceedings before the courts.
3. 755. As regards the alleged dismissals of five union officials and four union members, named previously (two of them dismissed from two insurance companies at the same time), trade union officials Ms María del Socorro Guadalupe Acevez González, Ms Rossana Aguirre Díaz, Ms María Cristina Vergara Parra, Ms Bertha Elena Flores Flores and Ms Elodia Hernández Orendain, and trade union members Messrs Alejandro Casarrubias Iturbide, Lázaro Gabriel Téllez Santana, Javier Badillo Flores and Martín Ramírez Olmedo, the Committee notes the information from the Government concerning the claims presented by María del Socorro Guadalupe Acevez, María Cristina Vergara Parra and Rossana Aguirre Díaz. The Committee also notes the Government’s statement to the effect that the allegations do not prove that there have been any dismissals as such, since independent insurance agents (like the persons named by the complainant, except for Lázaro Gabriel Téllez Santana, whose authorization has expired) have commercial contracts with a number of insurance providers, that is, they are not subordinate to the company and have no fixed working hours, so there is no employment relationship, since the contracts in question are commercial in nature, not contracts of employment, as has been claimed. According to the Government, it is clear from the communications presented that the company is terminating the contractual relationships in its own interest, but this fact does not imply any restriction in the agents’ professional activities nor does it limit them in respect of other commercial contracts with other insurance providers or prevent them from concluding other contracts; their activities as independent insurance agents are safeguarded not by their commercial commission-based contracts but by the authorization card issued by the CNSF. The Government states that the supplementary documentation provided by the complainant, comprising a number of complaints before the CONDUSEF, authorizations, and an email addressed to a representative of Allianz México SA, is unrelated to any particular fact or circumstance that could lead to the conclusion that there has been anti-union discrimination against the complainant, and indeed highlights two points: (1) the insurance agents act independently as brokers between the insurance companies and the clients in their client portfolio; and (2) the insurance agents may advise their clients regarding the policies best suited to their needs, with no obligation to remain attached to any particular insurance company. The Committee notes the Government’s statement to the effect that there were claims before the courts filed by María del Socorro Guadalupe Acevez González, María Cristina Vergara Parra and Rossana Aguirre Díaz, but notes that the Government has sent no information on the judicial claims filed by the other trade unionists named in the complaint (Alejandro Casarrubias, Lázaro Gabriel Téllez, Bertha Elena Flores Flores, Elodia Hernández Orendain, Javier Badillo Flores and Martín Ramírez Olmedo). The Committee concludes that, with the exception of the case of Mr Téllez Santana, the allegations made by the complainant refer to the termination of the commercial contractual relationship between a number of union members and two insurance companies. Given the time that has elapsed since the presentation of the complaint, the Committee expects that the Local Conciliation and Arbitration Board of Jalisco State will give a ruling swiftly on the claims made in connection with the alleged unjustified and anti-union dismissals (or, as the Government states, cessation of a commercial contractual relationship), and requests the Government to keep it informed of the outcome of those claims.
4. 756. As regards the allegation that the insurance companies named in the complaint sought the cancellation of the registration of the complainant before the Local Conciliation and Arbitration Board in Jalisco State – a request that, in the complainant’s view, was not legitimate – the Committee notes that according to the complainant, the request to deregister the union has created a climate of fear which prevents workers from joining. The Committee takes careful note of the Government’s statement to the effect that it will consider very attentively any decision of the judicial authorities requiring adjustments in the interest of compliance with the principles of freedom of association, and requests the Government to communicate any ruling handed down in this regard by the judicial authorities.
5. 757. The Committee notes that it is clear from the present case that the complainant has faced a number of difficulties, for example, in becoming established when the commercial relationship between two of the companies concerned and a number of union officials was terminated, and when it has had to defend itself against a request to cancel its registration. The Committee recalls that Convention No. 87 applies to all workers, with the sole possible exception of the armed forces and police, and requests the Government to monitor closely issues relating to the observance of the complainant’s trade union rights.