Informe definitivo - Informe núm. 382, Junio 2017

1. 428. The complaint is contained in a communication dated 18 May 2015 from the Union of Workers of the Social Security Institute of the State of Guanajuato (SITISSEG).
2. 429. The Government sent its observations in communications dated 26 May 2016 and 10 April 2017.
3. 430. Mexico has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

A. The complainant’s allegations

1. 431. In its communication dated 18 May 2015, SITISSEG alleges obstacles to the establishment of the complainant union, with suspension of the official recognition (registration) (toma de nota (registro)) of the union, the establishment of a trade union with close ties to the employer and favouritism towards it, and also threats and intimidation, denial of access to the competent authorities, and other acts of anti-union discrimination against the general secretary and other members of the complainant organization.
2. 432. The complainant union alleges that after mass dismissals in 2013 the workers began to organize with a view to forming a union and on 9 October 2014 the constituent assembly of SITISSEG took place. The complainant reports that after 17 October the commercial director and the general director of the Social Security Institute of the State of Guanajuato (ISSEG, hereinafter: the Institute) contacted the general secretary of SITISSEG, Mr Mauricio García Flores, to bribe and threaten him (in particular with offers of a salary increase in conjunction with a managerial post and threats that he would lose his job) in an attempt to make him leave the trade union movement, provide information on individuals forming the union, and make a recording of a union meeting (to this end, he was provided with recording equipment). The general secretary rejected these requests despite the pressure placed on him, using the recording equipment to record meetings with senior staff of the Institute at which attempts were made to persuade him to leave the union. The complainant alleges that one of these meetings was attended by Mr Alejandro Rivera Rivera, the general secretary of the Federation of Unions of Workers in the Service of the State Government and Municipalities (FSTSGEM) and a member of the executive board of the Institute, and that during that meeting it was hinted that the latter could establish another union.
3. 433. The complainant union alleges that on 21 October 2014, further to the establishment of SITISSEG and the refusal of its general secretary to leave the union, the director of the Institute appeared at the workplace of the SITISSEG general secretary to dismiss him personally, indicating that the decision came from the Institute’s executive board and from the governor himself.
4. 434. Moreover, the complainant union reports the fact that, also in October 2014, as part of the campaign against it, an anonymous complaint was made alleging sexual harassment. Despite the fact that prosecution of any such offence would occur only if a complaint was made by the injured party, the public prosecution service opened proceedings and presented a warrant for the arrest of the general secretary of the union at the pharmacy where he worked, with the police intimidating the staff and causing the forced disappearance of a number of women – one of them for over five hours (in relation to these actions, the commercial director of the Institute indicated that these were normal procedures and that there were no detainees). One of the individuals affected, Ms Elizabeth Pérez Nava, filed a complaint in this regard with the Human Rights Procurator’s Office of the State of Guanajuato. The complainant also indicates that armed officials of the public prosecution service attempted to make the colleagues of the general secretary sign prepared statements, but they refused to do so.
5. 435. The complainant union also alleges that, on 28 October 2014, Mr Rivera Rivera, a member of the executive board of the Institute, initiated a “fast-track” procedure to establish a trade union on instructions from the State Government, using coercion and deceit to get the workers to join it, and on the same day filed an application to register the union with the conciliation and arbitration board of the municipality of Guanajuato. The complainant expresses its shock at the fact that the board granted trade union registration to the “phantom” union in the record time of one day (in contrast to the harassment endured by the complainant). Moreover, on 7 November 2014, the union established by Mr Rivera Rivera signed a collective agreement with the Institute in which no benefits were increased; to all intents and purposes, it was a “phantom” agreement.
6. 436. In the wake of these events, the complainant union had recourse to the Human Rights Procurator’s Office of the State of Guanajuato and alleged the violation of collective human and labour rights. With the support of the Procurator’s Office, an agreement was reached containing various pledges – the Institute undertook to reinstate the general secretary, to refrain from any reprisals against him for filing the complaint with the Procurator’s Office and to refrain from damaging, violating or restricting the right of association or from violating the principles of freedom of association; the general secretary undertook to drop both his complaint before the Procurator’s Office and his labour complaint. As regards the complaint filed by Ms Elizabeth Pérez Nava alleging illegal deprivation of freedom and excesses committed by the public prosecution service, the legal staff of the Institute asked her to withdraw the complaint and offered her financial benefits through promotion. Initially Ms Pérez Nava did not accept but several days later she was visited by staff from the Institute who insisted that she withdraw the complaint, otherwise she could lose her job. In the end she withdrew the complaint and several weeks later she was promoted.
7. 437. The complainant organization also denounces delays and obstacles with regard to the recognition of SITISSEG, with the suspension of its official recognition (registration). It alleges that the official recognition was communicated 35 days late with the requirement to complete additional procedures not laid down in law, such as evidence of the members’ wishes (the complainant argues that this requirement was not imposed on any other union). Moreover, the complainant indicates that in February 2015 the union established by Mr Rivera Rivera applied to have the official recognition of SITISSEG invalidated, claiming that SITISSEG had been formed by individuals who held positions of trust and that it comprised fewer than 20 workers (false statements in both cases) and asking for the official recognition to be suspended. The complainant reports that, even though this was an unprecedented provisional measure not provided for in law, the Ministry of Labour granted the measure, suspending the official recognition of SITISSEG. In the same month, the complainant filed a request for amparo (protection of constitutional rights) and the judiciary ruled in favour of SITISSEG, granting it protection from the arbitrary suspension measure. Nevertheless, at the time of presentation of the complaint, the local conciliation and arbitration board had not complied with the judicial ruling. SITISSEG denounces the fact that, as a result, it remains suspended by the labour authority, which is subordinate to the executive authority. Moreover, the complainant states that the union established by Mr Rivera Rivera, which according to the complainant is controlled by the employer and the State, filed an appeal with the conciliation and arbitration board against the decision revoking the suspension, and that SITISSEG replied to this in April 2015.
8. 438. The complainant alleges that the authorities of the Institute, and also other public authorities of the State, have prevented or refused communication or meetings with the SITISSEG representatives. Specifically, the complainant refers, in its account of the events that occurred between October 2014 and March 2015, to numerous cases of failure to reply to its requests, including for the holding of meetings (as well as failure to reply to its phone calls), and also to cases of meetings that were proposed but not held (for example, in November 2014 the authorities summoned representatives of the union to a meeting to prevent a demonstration and after waiting for hours the representatives were informed that the authorities could not receive them; and after the official recognition of the union in January 2015 the director of the Institute did not reply to repeated requests from the union for meetings to be held).
9. 439. Furthermore, to illustrate the anti-union stigmatization suffered by members of the complainant union, SITISSEG alleges that in April 2015, in the context of a competition for a post of pharmacy administrator, a union member was not considered for the post despite having more seniority and excellent examination results, and the post was awarded to a worker on condition that she joined the other union. The complainant adds that staff are now being recruited without any obligation to take examinations and on the sole condition that they join the union established by Mr Rivera Rivera.

B. The Government’s reply

1. 440. In its communications of 26 May 2016 and 10 April 2017, the Government supplied the observations of the authorities concerned in reply to the complainant’s allegations. It indicates that in view of the coexistence of two trade union organizations at the Institute, disputes have arisen regarding the right to represent workers and both unions have taken legal action in this regard. The Government emphasizes that the labour authority has taken lawful and impartial decisions in all cases, respecting the rights of the trade unions. It explains that the registration of the complainant union (SITISSEG) is valid and the union can take whatever action it wishes in exercising its rights.
2. 441. As regards the allegations concerning a warrant for the arrest of the general secretary of SITISSEG and violence against and detention of some members of the union, the Government has sent the observations of the Prosecutor-General’s Office of the State of Guanajuato. The Prosecutor-General’s Office states that it received a complaint regarding acts allegedly constituting sexual harassment and indicates that, after the relevant checks had been made and evidence had been gathered, it was established that the acts in question had occurred with the consent of both parties, and so it was decided that there would be no criminal prosecution. The Prosecutor-General’s Office points out that at no time was the general secretary harassed or disturbed, and no attempt was made to locate him at his workplace. Moreover, no arrests were made and no pressure was exerted on witnesses, and no staff were subjected to deprivation of freedom or intimidation (the Prosecutor-General’s Office recalls that the fact that police officers are armed and have special equipment reflects the nature of their work and does not imply that they engage in intimidation or forced disappearances). The Prosecutor-General’s Office also denies that instructions were received from the state authorities or the Institute at any time or that the Prosecutor-General’s Office is ever used for purposes other than those established in the national Constitution. As regards the complaint filed by Ms Pérez Nava with the Human Rights Procurator’s Office of the State of Guanajuato for alleged deprivation of freedom, the Prosecutor-General’s Office points out that it was decided to dismiss the proceedings on account of the withdrawal of the complaint and emphasizes that at no time did the aforementioned Office illegally deprive Ms Pérez Nava of her freedom, and so her allegations lack substance and objectivity.
3. 442. The Government also rejects the allegation of the “fast-track” establishment of a trade union at the Institute with immediate granting of registration. The Government indicates that the State Union of Workers of the Social Security Institute of the State of Guanajuato (SETISSEG), represented by its general secretary Mr Alejandro Rivera Rivera, had already obtained its registration decades earlier, on 26 November 1984, as shown in the file of the Conciliation and Arbitration Tribunal of the aforementioned State. In this regard, the action taken in October 2014 was merely concerned with the request to update the list of active members, and also the official recognition (toma de nota) of the union’s new executive committee – which does not constitute the registration (registro) of a new trade union.
4. 443. As regards the allegation of threats to and the dismissal of the SITISSEG general secretary, the Government states that the latter had recourse to the Human Rights Procurator’s Office of the State of Guanajuato (the state body that upholds the protection of human rights) and put forward similar arguments to those contained in the complaint before the Committee. The proceedings before the Human Rights Procurator’s Office concluded with an agreement to dismiss the proceedings on the basis of conciliation, without any examination of the veracity or accuracy of the allegations in the absence of proof and without any recognition of injurious conduct by the authorities. As a guarantee of action by the public authority, pledges were made to continue safeguarding the human rights of the parties. Under the abovementioned agreement, the SITISSEG general secretary withdrew the complaint that had been filed, recognizing that there was no basis for presuming the alleged violations. The Institute considers that the statements in the complaint relate to the exercise of the worker’s personal rights, which were recognized by the competent authority, and that they do not relate to the sphere of freedom of association. As regards the references to recordings, the Institute indicates that it is unable to comment since the recordings were not handed over by the complainant, and what they contain and whether they actually exist is unknown. The Institute points out that there has never been any opposition to the establishment of a trade union and it denies having dismissed the SITISSEG general secretary – least of all because of the establishment of a trade union or instructions from superiors. It also emphasizes that no salary payments were ever withheld.
5. 444. As regards the allegation that a “phantom” collective agreement was signed, the local conciliation and arbitration board states that on 2 December 2014 the collective agreement concluded between the Institute and SETISSEG was registered, since the agreement duly complied with the requirements of the Federal Labour Act.
6. 445. As regards the allegation that the official recognition (registration) of the complainant union was suspended, the Under-Ministry of Labour of Guanajuato states that the conciliation and arbitration board, complying with the amparo ruling referred to by the complainant, issued a new decision dated 3 August, revoking the suspension and recognizing the legal entities and rights of SITISSEG. Consequently, the Under-Ministry rejects the complainant’s statement that the judicial ruling issued in the amparo proceedings was not complied with. It points out with regard to the proceedings that: (i) the measure had been taken in the context of legal action to invalidate the registration of SITISSEG brought by the SETISSEG general secretary, who called for the suspension; (ii) the suspension was granted by a decision of 24 February, against which SITISSEG filed an amparo appeal on 26 March 2015; (iii) on 21 April 2015, a ruling was issued granting amparo to the complainant union; (iv) the SETISSEG general secretary filed an appeal to review this decision; the appeal was rejected on 23 July 2015 by a judicial decision upholding the contested ruling; (v) consequently, on 3 August 2015, the board complied with the ruling, revoking the suspension order; (vi) on 20 August 2015, the judiciary confirmed that the board had complied with the ruling; (vii) on 7 October 2015, a decision was adopted declaring that there were no grounds for the claim for invalidation and SETISSEG instituted direct amparo proceedings in this regard; (viii) after conducting the proceedings on the basis of the evidence presented, the conciliation and arbitration board issued a new decision on 14 September 2016 in which it ruled that there were no grounds for invalidating the registration of SITISSEG, since there was no proof that there had been any failure to meet the legal requirements for registering the aforementioned union.

C. The Committee’s conclusions

1. 446. The Committee observes that the complaint is concerned with allegations of obstacles to the establishment of the complainant union, with suspension of the official recognition (registration) (toma de nota (registro)) of the union, the establishment of and favouritism towards a trade union with close ties to the employer, and also threats and intimidation, denial of access to the competent authorities, and other acts of anti-union discrimination against the general secretary and other members of the complainant organization.
2. 447. While duly noting the replies provided by the Government and the divergences between the allegations of the complainant union and the observations of the authorities concerned, the Committee observes that, according to the information supplied, as a result of the actions of the national judiciary and the human rights protection authorities: (i) agreements were reached through conciliation, without establishing liability with regard to the allegations of dismissal, violence and deprivation of freedom (as a result of which it was agreed to reinstate the general secretary of the complainant union, and a pledge was made to respect the principles of freedom of association and to drop the complaints made against the public authorities); and (ii) as regards the suspension of registration of the complainant organization, further to the decisions issued, SITISSEG is duly registered and is fully entitled to exercise freedom of association.
3. 448. As regards the other allegations of anti-union practices, such as stigmatization of the members of SITISSEG and favouritism towards SETISSEG, which, according to the complainant, continued after the adoption of the conciliation agreements (for example, allegations of favouritism and anti-union interference in recruitment procedures), and the allegations that the authorities of the Institute and other public authorities repeatedly failed to reply to numerous applications and requests for meetings made by the representatives of SITISSEG, the Committee observes that the Government has not supplied any observations in this regard. The Committee invites the Government to promote dialogue between the complainant union and the authorities of the Institute with a view to fostering harmonious labour relations and, if necessary, ensuring adequate protection of the complainant’s trade union rights.