Seguimiento dado a las recomendaciones del Comité y del Consejo de Administración - Informe núm. 387, Octubre 2018

Effect given to the recommendations of the committee and the Governing Body

1. 26. The Committee last examined the substance of this case at its June 2017 meeting [see 382nd Report, para. 130]. On that occasion, the Committee indicated that it would proceed with the examination of this case in relation to the specific allegations of violations of the principles of freedom of association and collective bargaining arising from protection agreements and to the issues concerning anti-union discrimination. The Committee requested the Government to provide all supplementary and relevant up-to-date information on the various allegations made by IndustriALL of specific situations involving the use of protection agreements, so that the Committee would have access to all relevant information when it next examined the follow-up of the case. In addition, the Committee referred the legislative aspects of the case on the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), to the Committee of Experts on the Application of Conventions and Recommendations.
2. 27. In its communication of 1 February 2018, the Government sent information regarding the follow-up given to the Committee’s recommendations in relation to the specific situations raised by IndustriALL in its previous communications:
   • (a) Honda Mexico United Workers’ Union (STUHM): the Federal Conciliation and Arbitration Board (JFCA) heard the case related to the title to the collective agreement filed by the STUHM, carrying out in due time and form each step of the procedure established in legislation: (i) the vote recount was conducted on 15 October 2015 in the best possible conditions, without any duly substantiated or validated objections and in the presence of three JFCA certifying officers, the Secretary-General for Agreements, Conciliation and Collective Issues, two federal labour inspectors, eight observers representing foreign trade unions, the secretaries general and representatives of the unions and representatives of the company; (ii) the recount was carried out in accordance with the law in a peaceful and orderly manner, and of the 1,829 workers present, 788 voted for STUHM and 1,001 for the defendant trade union; (iii) when it discovered that the recount was not in its favour, the STUHM filed direct amparo proceedings with the first district labour court of the federal district, which were dismissed, confirming that the JFCA had acted in strict compliance with the law; and (iv) regarding the alleged existence of a presumed conflict of interest on the part of the individual who acted as coordinator for the advisers to the President of the JFCA, the board advised on 25 May 2016 that the individual in question did not perform that public function and there was therefore no conflict of interest.
   • (b) Commercial, Office, Retail, Similar and Allied Workers’ Union (STRACC): (i) on 28 March 2017, STRACC was granted the title to the collective agreement; and (ii) the parties who had been sued by STRACC lodged appeals for amparo (Nos DT 661/2017, DT 660/2017 and DT 659/2017), which were unsuccessful and therefore did not adversely affect the STRACC.
   • (c) National Union of Petroleum Technicians and Professionals (UNTyPP): (i) since 25 March 2010, Petróleos Mexicanos (PEMEX, hereinafter the oil company) and the UNTyPP have held more than 15 meetings in which issues raised by the UNTyPP have been addressed, including the dismissal of workers – agreeing to discuss the possibility of rehiring those worker members of the UNTyPP who were affected by the aforementioned movements; (ii) this case was analysed as part of the round table discussions held since 2012 by the Ministry of Labour and Social Security (STPS) with the National Union of Workers – the STPS has facilitated meetings between the UNTyPP and the management of the company in which employment files were analysed, leading to the reinstatement and retirement of several UNTyPP members, in the interest of mediating a settlement to the disputes, on 7 July 2015 the Deputy Minister for Labour addressed a communication to the chief executive officer of the company voicing the UNTyPP’s concerns regarding the new collective labour agreement; (iii) there is a collective labour agreement between the company and the Petroleum Workers Union of Mexico (STPRM), which was last revised on 17 July 2017 and is valid until 31 July 2019.
   • (d) With regard to the BMW plant (hereinafter the first car manufacturer) located in San Luis Potosí: (i) on 3 July 2014, a collective labour agreement was presented to the JFCA between the company and the Mexican National Automotive Industry, Similar and the Allied Workers’ Union of the Confederation of Mexican Workers (CTM); (ii) the labour authority verified the legitimacy of the Union to assemble automotive industry workers and that the contractual agreement complied with the requirements set out in section 391 of the Federal Labour Act, the collective labour agreement was consequently registered; and (iii) on 27 November 2017, under the protocol on free collective bargaining, an extraordinary inspection was carried out at the company’s San Luis Potosí plant during which it was found that 815 workers (603 men and 212 women) worked in the workplace, those workers knew the representative of the union of which they were a member, were aware of the collective labour agreement that applied to them and had access to it (both in the workplace and online); in that respect, it was confirmed that the company had hard copies of the collective agreement governing labour relations that were provided to workers and were made available in freely accessible spaces.
   • (e) With regard to the KIA Motors Corporation plant (hereinafter the second car manufacturer) in Nuevo León: (i) on 26 August 2014, a collective labour agreement was presented to the JFCA between the company and the Mexican National Automotive Industry, Similar and Allied Workers’ Union; (ii) the labour authority verified the legitimacy of the Union to assemble automotive industry workers and that the contractual agreement complied with the requirements set out in section 391 of the Federal Labour Act, and, having fulfilled the jurisdiction and legal requirements and those for the right to represent others, the agreement was registered; and (iii) on 16 November 2017, under the protocol on free collective bargaining, an extraordinary inspection was carried out of the general working conditions in the company, which verified the existence of 2,404 workers (1,720 men and 684 women), registered with the Mexican Social Security Institute, the existence of a collective labour agreement duly registered with the labour authority, and it was confirmed that the workers knew the name of the union of which they were members and the content of the collective labour agreement applicable to them and had access to it (copies were distributed to workers and kept available in freely accessible spaces).
3. 28. Based on the information above, the Government considers that these cases prove that state institutions function adequately and give due attention to the claims of the unions concerned. Furthermore, it recalls that new efforts have been undertaken to make the work of the labour authorities more efficient and timely and to consolidate the prompt and unimpeded administration of labour justice, including through national coordination mechanisms to improve the pursuit and administration of day-to-day justice in Mexico and the recent update to the labour regulations framework by means of the 2017 constitutional reform on labour justice administration.
4. 29. In communications dated 3 and 30 July 2018, IndustriALL provides its observations and further information regarding the follow-up of the case. IndustriALL reports that, despite the reforms and other measures announced by the Government, the practice of employer protection agreements is continuing and expanding, as evidenced by the specific situations it presents in relation to the complaint. As a reminder, IndustriALL condemns the system under which such protection agreements reportedly continue to operate, emphasizing that: (i) the agreements are a clear result of cooperation between the Government (which would approve employer protection agreements in return for political favours – while acting as employer, judge and litigant in the authorities responsible for administering justice), corporate federations (which are deeply embedded in political and economic decision making bodies) and certain companies (which maintain lower operating costs and control over their workforce as these agreements protect the employer from having to negotiate with genuine unions), thus preventing workers from exercising their right to freedom of association; (ii) the protection union that will administer the collective agreement is selected before the employer even begins operations; and (iii) if workers try to organize themselves, the authorities, employers and corporate federations work together to ensure they are not successful, using methods which range from postponing proceedings to dismissals and all types of threats and assaults. In addition, it challenges the effectiveness and authenticity of the measures announced by the Government to combat this deep-rooted practice, alleging that these changes are designed to allow the situation to remain unchanged, emphasizing that: (i) union information and collective agreements are not published or available, as reported by the Government; (ii) proceedings continue to last for an average of five years; (iii) meetings with Mexican unions in relation to the complaint did not address the issue of protection unions; (iv) while the constitutional reform is presented as a panacea, in reality it is an illusion, as demonstrated by the bill formulated to implement the reform, which was presented by senators who are members of corporate federations and therefore reproduces the system of collective protection agreements; and (v) the 2016 protocol on free collective bargaining is no more than a sham as: the inspection dates are decided in advance with the company; the workers questioned during the inspection are selected by the trade union representative and/or the employer (questions simply regarding whether the worker in question is aware of their union and its statutes, whether he or she is aware of the collective agreement and whether the agreement is accessible to workers, in a clear location in the workplace). IndustriALL considers that if a collective employer protection agreement is in place in that workplace (as, according to the complainant, is the case for 90 per cent of workplaces) the replies are controlled by the protection union, rendering the protocol useless. In addition, in order to demonstrate the deficiencies of the public mechanisms, IndustriALL reports that, in response to the impunity and passivity of the labour authorities, a committee of civil society organizations has been established in the textile industry that includes 14 international brands and which carried out a “Campaign for freedom of association in Mexico” with the objective of “challenging the use of protection agreements in their supply chains”. These brands have worked on their own initiative to implement independent monitoring and audits to verify the compliance of their internal codes of conduct with the ILO fundamental Conventions, in particular to address the issue of protection agreements and ensure that the supplier companies with which they have production contracts understand and respect the right to freedom of association. In several cases these private initiatives have managed to resolve serious issues related to rights, dismissals and harassment in factories where protection unions operated.
5. 30. In addition, IndustriALL provides further information regarding specific situations highlighted in the Committee’s previous examination of the complaint and on new cases. With respect to previously presented cases, on which the Government has provided its observations, the complainant indicates that:
   • (a) Regarding the STUHM, challenging the Government’s report, it emphasizes that: (i) the JFCA ordered the recount within the company and without reliable documentation on the voter register; (ii) during the recount entry was denied to the team of national and international observers and STUHM representatives (union representatives were threatened with firearms by the plant’s security personnel when they demanded to be granted entry and they were only permitted to enter following heated arguments and complaints); (iii) throughout the whole procedure inside the plant representatives of the union in question, the Union of Employees and Workers in the Vehicle Manufacturing and Assembly Industry (SETEAMI), and the company continuously threatened the workers with dismissal if they lost the recount; (iv) the list of voters contained persons who should not have voted and company personnel selected those who could access the voting area, which was isolated from the rest of the plant and surrounded by internal security personnel; and (v) the irregularities were reported by the STUHM but they were not addressed by JFCA officials; (vi) the SETEAMI legal representative acted as the representative of the SETEAMI (of the CTM) during the trial before the JFCA and as the coordinator for the advisers of the president of that board, when the STUHM reported this conflict of interest, the individual ceased to represent SETEAMI, but reassumed that role in June 2015; (vii) despite all of the aforementioned irregularities in the recount, the STUHM received 48 per cent of the vote; however, the company refused to grant it the facilities to represent its members, including entry into the plant, office space to meet with members, recognition of its representative and the deduction of trade union dues, and (viii) the executive board of the STUHM remains dismissed and its request for reinstatement is in process.
   • (b) Regarding the STRACC: (i) in several stations where it is the titleholder of the collective agreement, employer representatives and protection unions threaten workers in order to coerce them into resigning with a view to hiring new personnel from third party companies; (ii) STRACC leaders, members and representatives have been threatened, attacked, kidnapped and illegally imprisoned as a result of false accusations from employers in collusion with the local and federal Government, in this context, organizing in a union poses a risk for the personal safety of workers and their families; (iii) in the legal action to seek title initiated on 3 June 2014 by the STRACC against the Union of Employers and Workers in the Federal District General Trade Sector and the company, the recount was not held until 31 August 2015, owing to a series of irregularities instigated by the company, the protection union and the Local Conciliation and Arbitration Board (JLCA) of the federal district; (iv) it was not until March 2018 that, after repeated appeals lodged by the company, the STRACC was recognized as the titleholder for this workplace, but in the meantime the majority of workers who had expressed a preference for the STRACC as their trade union had been dismissed and the company is currently dismissing more workers in order to hire new employees through a third party company which operates its own collective protection agreements; (v) in June 2018 in the La Laguna petrol station, after STRACC had obtained the title to the collective labour agreement and had attained various related achievements, first the company threatened the Secretary-General to coerce him into cancelling the collective agreement and subsequently the Secretary-General of a trade union of a federation considered to be corporate contacted him asking how much money he wanted for the collective agreement, an offer which the STRACC representative declined; then armed thugs from the federation concerned hired by the company appeared during each shift change, attempted to oust workers and STRACC members using threats and demanded that they resigned from their jobs and the trade union – the STRACC issued a call to strike to the company to protect its members, which is pending before the JLCA.
   • (c) Regarding the UNTyPP: (i) the oil company held several meetings with the UNTyPP in 2016 and 2017 that did not resolve the key issues such as union representation, the refusal to engage in collective bargaining, open and aggressive interference in trade union operations and the refusal to reinstate those dismissed; (ii) the small number of meetings that have taken place with the company have been held on the insistence of the UNTyPP and the replies were sent electronically to avoid a record being kept of the meetings or of the recognition of the trade union; when the issues were addressed it was by low level officials who did not resolve the conflicts; and (iii) various meetings were held with the STPS which failed to respond to the complaints of the UNTyPP, and the union has not been granted a meeting with the company for about two years, despite its requests.
   • (d) Regarding the first car manufacturer: (i) in July 2014 it announced its new plant in San Luis Potosí which would begin operations in 2019 and, in the same month, it concluded a collective employer protection agreement signed by the Secretary-General of the Mexican National Automotive Industry, Similar and Allied Workers’ Union of the CTM; this agreement was therefore concluded five years before operations were due to begin at the plant and before workers were hired; (ii) the Secretary-General who signed the agreement had concluded 26 other collective agreements in San Luis Potosí with automobile and spare parts plants – although the STPS website indicates that the union concerned has only 153 members – and that same individual is also the Secretary General of the Federation of Workers of the State of San Luis Potosí, which has 25 member unions covering all industrial sectors; (iii) in 2018, as planned, the company was yet to begin operations and had only indicated that it was in the process of training workers provided by the CTM; (iv) however, on the STPS website it appears that the employee section of the collective agreement was revised on 7 March 2018, indicating that it was applicable to 146 active workers at that time – the number of members of the protection union covered by the protection agreement does not coincide with the number of workers indicated by the Government following a supposed labour inspection nor with the number of workers (361) indicated on its tax return; and (v) the plant is supposed to open in April 2019 and it plans to employ 1,500 direct workers and around 7,500 more “indirect workers” throughout its supply chains – supposedly all these workers will automatically become members of the aforementioned protection union, covered by a collective protection agreement in the development of which they did not participate and were not consulted.
   • (e) Regarding the second car manufacturer: (i) in August 2014 it announced the construction of the plant, which would begin operations in the first half of 2016 and, like the first car manufacturer, at the same time as the announcement of the construction of the plant in August 2014, it concluded the protection agreement that would govern the plant; (ii) the agreement was concluded with the Mexican National Automotive Industry, Similar and Allied Workers’ Union of the CTM; (iii) the protection agreement is applicable to any workplace of the second car manufacturer established in the country after August 2014, forcing all workers joining the company from that date to become members of the protection union; and (iv) the company and the protection union revised the part of the agreement regarding salaries on 1 April 2017, without publicizing the fact that the collective protection agreement had been revised with regard to improved benefits for the 7,000 workers registered in November 2017.
6. 31. In light of the above information regarding the specific situations that had already been presented in its previous examination of the case, the Committee:
   • (a) Regarding the STUHM, while it observes that the Government considers the recount to have taken place in the best possible conditions and takes due note that the courts dismissed the objections raised by the STUHM, it also observes that the complainant alludes to several irregularities and restrictions in the recount, alleges a lack of impartiality on behalf of the authorities and presents additional allegations of anti union discrimination against the STUHM and its leaders and members.
   • (b) Regarding the STRACC, while it takes due note that, according to the Government, in March 2017, it ruled in favour of the STRACC granting it the title to the collective agreement and that amparo proceedings challenging the ruling were not successful, it also observes that the complainant presents new allegations of anti-union discrimination, which it is argued are designed to strip the STRACC of its title in order to allow a protection union to control the collective agreement.
   • (c) Regarding the UNTyPP, while the Government observes that several meetings appear to have been held in which existing disputes have reportedly been addressed and workers have even been reinstated, the complainant alleges that, despite the actions of the STPS, the company is avoiding meeting with them and no results have been achieved.
   • (d) Regarding the first car manufacturer, on the one hand, the Government observes that, in July 2014, a collective agreement was concluded following the necessary checks regarding the legitimacy of the trade union and in compliance with the law, and that in November 2017 an inspection of the plant was conducted – under the protocol on free collective bargaining – during which it was verified that 815 workers worked there who were aware of both the trade union and the collective agreement. On the other hand, the information provided by the complainant shows that the collective agreement was concluded in 2014, at the same time that the company announced that it would construct the plant with a view to beginning operations in 2019, that at the current time the company has reportedly only indicated that it is training workers (provided by a federation linked to the alleged protection union) and that, during the inspection reportedly undertaken by the Government, the plant was not yet in operation, there being a significant disparity between the number of workers allegedly verified by the Government (815) and the workers currently registered under the collective agreement (146).
   • (e) Regarding the second car manufacturer, on the one hand, the Government observes that, like the first car manufacturer, in 2014 a collective agreement was concluded following the necessary checks regarding the lawfulness of the trade union and in compliance with the law, and that, in November 2017, an inspection of the plant was conducted – as part of the same administrative protocol on free collective bargaining – during which it was confirmed that 2,404 workers worked there who were aware of the trade union and the collective agreement. On the other hand, the complainant reports that once again in this case the collective labour agreement was concluded at the same time as the announcement of the installation of the new plant and before it began operations, and that it obliged all workers joining the company to become members of the protection union.
7. Having taken into account the wide discrepancies between the parties’ reports, the Committee invites the complainant to send the additional information at its disposal in relation to these allegations regarding the phenomenon of protection unions and protection agreements, and requests the Government to review with the organizations in question the issues that could remain with a view to conducting the relevant additional investigations and taking the necessary measures to ensure full respect for the principles of freedom of association and collective bargaining. The Committee requests the Government to keep it informed in this respect.
8. 32. The Committee also notes that IndustriALL, through these specific allegations, reports that the protocol on free collective bargaining is not contributing to combating the phenomenon of protection unions and protection agreements. In that regard, the complainant alleges that it is still permitted for collective agreements to be concluded years before a company begins operations (they would therefore not be a result of the will of the workers concerned through a representative union); that the dates of the inspections under the protocol are established in advance with the companies, the workers questioned during the inspections are selected by the representative of the protection union and/or the employer and the questions are limited to verifying aspects such as whether workers are aware of the union, its statutes and the collective agreement as well as whether they have access to said agreement in a visible location in the workplace – it therefore considers that the protection union can control the inspection process and render the protocol useless. The Committee invites the Government to consider the possibility of consulting the most representative workers’ and employers’ organizations and the national organizations that have supported this complaint with regard to the functioning of the protocol. The Committee requests the Government to keep it informed in this regard and indicate whether, as a result of the application of the protocol, protection unions and protection agreements have been identified and, if so, what measures have been taken.
9. 33. In addition, IndustriALL provided in its most recent communications, detailed information regarding other specific situations in which violations of the principles of freedom of association and collective bargaining are alleged arising from the practice of protection unions and protection agreements – a practice which is reportedly closely linked to anti-union discrimination and violence. These instances include: (a) the murder of a trade union member as well as attacks, threats and other forms of anti-union discrimination related to the establishment of a new trade union (the Union of workers of the “Union and Strength” Heroic Body of Firefighters of Mexico City) – in this regard, the Committee takes note of the Government’s communication of 5 October 2018, providing a copy of the new trade union’s legal recognition request dated 20 August 2018; (b) the establishment of a new protection union and protection agreement, years before the beginning of operations, in relation to the construction of a new airport in Mexico City; (c) the dissolving of a trade union and the elimination of its collective agreement by means of the decision to close a public water and sanitation facility in the City of Veracruz; (d) several cases related to the operation of collective employer protection agreements in several mines affecting in particular the National Union of Miners, Metalworkers and Allied Workers of the Republic of Mexico (SNTMMSSRM); (e) anti-union dismissals in the automobile spare parts sector; (f) conflicts between the agreement and current legislation in the industry converting rubber into manufactured goods; (g) harassment and dismissals related to the establishment of an independent trade union in the Jiutepec textile industry; (h) allegations of similar violations in the public sector; and (i) further allegations of anti-union violence and discrimination, including the murders of two mining leaders in November 2017 and a miner in January 2018 (allegedly by gangs controlled by one of the corporate federations). The Committee notes these allegations and, expressing its concern at the serious nature of some – particularly the murders of trade unionists – requests the Government to conduct the necessary investigations and provide its observations in that respect.
10. 34. Lastly, the Committee generally observes that while: (a) on the one hand, the Government considers that the specific situations presented demonstrate that the existing public mechanisms are functioning satisfactorily and recalls the different efforts undertaken, including the recent constitutional reform on labour laws which are awaiting developments; (b) on the other hand, there are continued allegations of a lack of impartiality and guarantees in the application of the procedures related to the titles to collective agreements, bringing into question the effectiveness of the measures taken by the authorities to combat the practice of protection agreements and protection unions, which is said to be continuing and expanding – for example, the complainant emphasizes that parts of the business sector have taken their own initiatives to combat this problem. The Committee trusts that in the development and implementation of the constitutional reform and its secondary legislation, in consultation with the most representative workers’ and employers’ organizations, and the national organizations that have supported this complaint, all the necessary measures will be taken to address the different dimensions of the problem of protection agreements and protection unions that have been presented in this case.