Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 376, Octubre 2015

1. 787. The complaint is contained in communications dated 28 October 2013 and 28 April 2014 from the “Don Napoleón Gómez Sada” National Mining and Metalworking Union (SNMM).
2. 788. The Government sent its observations in communications dated 23 May 2014 and 21 October 2015.
3. 789. Mexico has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

A. The complainant’s allegations

1. 790. In its communications dated 28 October 2013 and 28 April 2014, the “Don Napoleón Gómez Sada” National Mining and Metalworking Union (SNMM) alleges that a procedure to award the rights to collective agreements gave rise to irregularities, interference by public authorities and the enterprises concerned, as well as acts of violence and threats by another trade union. The complainant organization states that workers from the enterprises Servicios Minera Real de Ángeles and Minera Real de Ángeles de la Mina el Coronel discovered that they had unknowingly become members of the Union of Miners and Allied Workers of the Republic of Mexico (STIMS), which held the rights to two collective protection agreements. The complainant organization indicates that, in response to a strike in April 2012, the SNMM successfully intervened in the labour dispute, and obtained the payment of due dividends and other improvements in pay and working conditions, including the revision of the collective labour agreement. Between May 2012 and May 2013, the SNMM held multiple discussions with enterprises and the STIMS to determine their respective representation, as it considered that the STIMS did not represent the workers. After failing to reach an agreement, on 28 May 2013, the complainant organization submitted a request to the Federal Council for Conciliation and Arbitration to obtain the rights to the collective agreements.
2. 791. The complainant organization states that, as from 29 May 2013, a third trade union, the National Union of Miners, Metalworkers and Allied Workers of the Republic of Mexico (SNTMMSS), launched a campaign of attacks on the SNMM and its members, in order to take over the rights to the collective agreements, with the support of the enterprises and the competent authorities. The SNMM indicates that on 29 May 2013, the SNTMMSS itself called an illegal strike which lasted 79 days, in response to which the enterprise sent its workers on training courses. The complainant organization alleges that, during the strike, the Secretariat of Labour and Social Insurance met with the enterprises, the SNTMMSS and the STIMS, without the SNMM, and that in the media, it was announced that the Secretariat of Labour and Social Insurance had recognized SNTMMSS as holder of the rights to the collective agreements. This action was illegal, as the request submitted by the complainant organization to the Federal Council for Conciliation and Arbitration on the issue was still pending. The complainant organization alleges that during the discussions aimed at ending the strike, the Secretariat of Labour and Social Insurance reached an agreement with the enterprises, the SNTMMSS and STIMS that, in order to limit the representation of the SNMM and prevent it from obtaining the rights to collective contracts, SNMM representatives should not be allowed to return to work. The SNMM alleges that when work was resumed on 16 August 2013, 30 SNMM workers and several members of the local executive committee, who are named by the complainant organization, were prevented from returning to the workplace, on the pretext that workers would continue to attend training courses for an indefinite period of time, and with the agreement of the Secretariat of Labour and Social Insurance.
3. 792. The complainant organization furthermore claims that the SNMM’s members and supporters, including several of the 30 workers referred to in the above paragraph, have been assaulted by and have received threats, including death threats, from SNMM members and associates and hired thugs, with the aim of preventing them from entering the workplace and discouraging them from supporting the SNMM. The SNMM underscores the following allegations of violence, in relation to which complaints were filed with the Agency of the Public Prosecutor’s Office: (a) the physical assault of Ms Ana Gabriela Ruíz González by five members of the SNTMMSS; (b) acts of intimidation and violence to prevent access to the workplace, and death threats by a hired thug from the SNTMMSS against a group of 29 workers named by the complainant; (c) the assault, in the workplace, of Mr Mauricio Alberto Sustaita López, a SNMM trade union leader, who was forced to leave under threats, as ordered by the representative of the SNTMMSS; and (d) harassment, threats and deprivation of liberty in order to stop Ms Norma Ibarra Torres, sister of a worker and SNMM member, entering the workplace. The complainant organization considers that these incidents of abuse and harassment were permitted by the Secretariat of Labour and Social Insurance and by the enterprises, which did nothing to prevent them and, with regard to the events that occurred in the workplace, it states that the security services did not intervene to defend the rights of those affected.
4. 793. In its communication of 28 April 2014, the complainant organization reports irregularities in the procedure to award the rights to collective agreements, and believes that the ballot held on 21 February 2014 to determine the most representative trade union organization was not conducted in a free, direct, personal, non-transferrable or secret manner, as confidentiality was not guaranteed, voting workers were allowed to display SNTMMSS emblems on their clothing, and individuals who had no connections with the ballot were allowed to influence the decisions of the voters (in this regard, the complainant organization provides an information leaflet issued by the SNTMMSS, which accepts the participation of international observers, including unionists from the international trade unions, the United Steelworkers and the American Federation of Labor-Congress of Industrial Organizations (AFL–CIO)). The complainant organization adds that the 30 workers who were denied entry to the enterprise, on the pretext that they needed to attend training courses, had to access the premises in secret so as to vote, and only began to return to work from that time onwards. On 28 February 2014, the complainant organization raised objections to the balloting procedure before the Federal Council for Conciliation and Arbitration, which were dismissed, and the SNMM therefore lodged a judicial appeal. The complainant organization adds that the enterprises, with the authorization of the Secretariat of Labour and Social Insurance and the Federal Council for Conciliation and Arbitration, are negotiating, with the SNTMMSS, the revision of the collective agreement, although they do not have the right to do so, as the dispute concerning the rights to the agreement is pending before the courts. This is proof of interference by the enterprises and the public authorities.

B. The Government’s reply

1. 794. In its communication of 23 May 2014, the Government states that the complaint stems from an inter-union dispute that was addressed in accordance with labour legislation and with the principles of freedom of association. The Government adds that the complainant organization was able to exercise its rights before the Federal Council for Conciliation and Arbitration in order to request the rights to the collective agreements, and was able to lodge an appeal before the Federal Council.
2. 795. As regards the allegations relating to the illegal strike called on 29 May 2013 and the alleged interference of the labour authority, the Government states that the involvement of the authorities was consistent with their power to ensure balance between factors of production, pursuant to article 40 of the Federal Public Administration Organization Act. The Government indicates that the Secretariat of Labour and Social Insurance encouraged a rapprochement between the trade union that held the rights to the collective labour agreements, the other trade union organizations and the enterprise, and that as a result of helping to reconcile the interests of the parties, the strike was ended on 14 August 2013. The Government underscores that: (i) the strike was initiated by dissatisfied workers, with the backing of the SNTMMSS, and with the participation of workers who supported the SNMM and the STIMS; (ii) in June 2013, the mining enterprise implemented training courses for all workers, with paid wages; (iii) thanks to mediation by the state and federal authorities, which continuously observed the full freedom and the trade union autonomy of all workers, in August 2013, the parties reached an agreement and activities were resumed; (iv) based on the agreements adopted, it was established that all workers would decide democratically and through formal legal channels before the Federal Council for Conciliation and Arbitration, whether they would continue to be members of the trade union, which until then, held the rights to their collective agreements, or whether they would join another union involved in the inter-union dispute; (v) the workers agreed for the labour authority to verify whether dividends had been paid in accordance with the law, while the enterprise undertook not to dismiss or file charges against the strikers, and to pay 50 per cent of wages when the strike had been lifted and the other half when a specific training course had been completed; and (vi) the workers highlighted the positive attitude of the mining enterprise during the negotiations.
3. 796. With regard to the process carried out by the STIMS to award the rights to collective agreements, the Government encloses information from the Federal Council for Conciliation and Arbitration. It states that the rights to collective agreements were requested by the secretary-general of the SNMM on 28 May 2013, and by the secretary general of the SNTMMSS on 6 June 2013 (a third trade union also requested the rights but later withdrew its request). The Government affirms that, after a voting list of the 776 trade union workers concerned was displayed, a ballot was held on 21 February 2014, which began at 7 a.m. and ended at 3 p.m. upon the agreement of the three participating trade unions and after 740 persons had voted. The results were as follows: 309 votes for the SNMM, 425 votes for the SNTMMSS, zero votes for the STIMS and six invalid ballot papers.
4. 797. In its communication dated 21 October 2015 the Government states, in response to the allegations of procedural irregularities in the ballot, requirements set out in the legislation and case law of the Supreme Court of Justice of the Nation (150/2008) were fully met. The Government states that in accordance with these requirements the authorities: (a) ensured that the workers entitled to participate were fully identified, through the prior elaboration of voting list; (b) verified that the conditions for the ballot were those necessary for its orderly, swift and peaceful realization, having ensured that the location met the minimum physical and security requirements; (c) ensured that the voting took place in accordance with the principles of freedom, security and secrecy; (d) verified the identity of workers through their official valid credentials; (e) verified that the final counting of the votes was conducted in a public and transparent manner, with the presence of trade union and employer representatives, including representatives of the complainant organization; and (f) with regard to the objections to the ballot procedure and in conformity with the Federal Labour Law, on 28 February 2014 a hearing took place to examine the objections of the SNMM, which were deemed unfounded. The Government indicates that on 11 March 2014, in accordance with the results of the ballot, an award was issued, which awarded the rights to the collective labour agreement to the SNTMMSS. Finally, the Government informs that the SNMM lodged an amparo (remedy for the protection of constitutional rights) appeal alleging procedural violations and that the First District Labour Court of the Federal District decided to dismiss the amparo appeal on 30 April 2014, as a result of which the matter concluded, confirming the award of the collective bargaining rights in favour of the SNTMMSS.
5. 798. As regards the allegations of assault and threats against members of the SNMM by members of the SNTMMSS, the Government indicates that in the event that workers and representatives of the enterprises had experienced acts of violence, they had access to legal means and resources in order to report the acts to the competent authorities.

C. The Committee’s conclusions

1. 799. The Committee notes the complainant organization’s allegations that a dispute among trade unions over a procedure to award the rights to collective agreements gave rise to irregularities, interference by public authorities and the enterprises concerned, and acts of violence and threats by another trade union. The Committee takes note of the Government’s indication that the authorities addressed the inter-union dispute in accordance with the law and the principles of freedom of association, by acting as mediators in order to facilitate the resolution of a collective dispute and to grant, in a democratic manner, the rights to collective agreements.
2. 800. With respect to the allegations of irregularities in the procedure to award the rights to collective agreements and, particularly, in the balloting process (allegations of non-confidentiality in the voting, display of emblems on clothing, and the presence of individuals who had no connection to the vote), the Committee duly notes the explanations of the Government as to compliance with the requirements set out in the legislation and the case law for the ballot procedures and observes that the complainant organization raised its objections before the competent authorities and that its judicial amparo appeal was dismissed, the award of the collective bargaining rights in favour of the SNTMMSS thus being confirmed. Furthermore, regarding the allegations on the presence of other individuals during the ballot, the Committee observes, from the documentation provided by the complainant union, that several of these people were international observers from foreign and international trade unions (AFL–CIO and United Steelworkers), and would like to recall that the presence of international observers in a disputed voting procedure is not contrary to the principles of freedom of association.
3. 801. Concerning the allegations of violence (assault and threats, including death threats, in order to prevent the entry into the workplace of members and supporters of the complainant organization, and to intimidate them so that they would not support the SNMM), the Committee takes note that, out of the various alleged acts of violence and threats, the complainant union draws attention to four episodes, in relation to which a complaint has been filed. Moreover, the Committee observes that, although the Government refers to the possibility of lodging appeals, it has not sent specific information on these allegations of violence and threats. While regretting the seriousness of the claims, recalling that trade unions should respect the law of the land, and underlining the importance of the peaceful exercise of trade union rights, the Committee invites the complainant organization to indicate whether it has filed other criminal charges relating to its allegations of threats and acts of violence, and to keep the Committee informed of any decisions handed down by the court.
4. 802. As regards the allegations of interference by the Government and the enterprises concerned, the Committee notes the Government’s statements that its actions were in line with legislation. Nevertheless, taking into account the divergence between the allegations of the complainant organization and the response of the Government, the Committee invites the complainant organization to provide additional information to support its allegations, including on any judicial actions undertaken in this respect.
5. 803. Lastly, the Committee requests the Government to obtain and send the observations of the enterprises in question regarding this case, via the employers’ organization concerned.