Seguimiento dado a las recomendaciones del Comité y del Consejo de Administración - Informe núm. 405, Marzo 2024

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

1. 24. The Committee last considered this case, concerning various allegations of specific situations relating to the use of protection contracts, at its October 2018 meeting [see 387th Report, paras 26–34]. On that occasion, the Committee made the following recommendations [see 387th Report, paras 31–34]:
   • (a) 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.
   • (b) 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 on free collective bargaining. 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.
   • (c) Expressing its concern at the seriousness of some of the additional allegations presented by IndustriALL – particularly the murders of trade unionists – the Committee requests the Government to conduct the necessary investigations and provide its observations in that respect.
   • (d) 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.
2. 25. In a communication dated 28 October 2020, IndustriALL Global Union (hereinafter IndustriALL, formerly the International Metalworkers’ Federation), submits additional information in relation to some of the Committee’s recommendations, as well as new allegations. In general, IndustriALL states that, despite changes in government, most of the cases exposed through this complaint remain unresolved, without acknowledgement of the facts and without response from the Government, implying widespread impunity.
3. 26. With regard to five specific situations concerning the Honda Mexico United Workers’ Union (STUHM), the Commercial, Office, Retail, Similar and Allied Workers’ Union (STRACC), the National Union of Petroleum Technicians and Professionals (UNTyPP), the first car manufacturer  , as well as the second car manufacturer  (recommendation a)), IndustriALL claims that it has not yet received an institutional or legal response.
4. 27. Regarding the STRACC, IndustriALL alleges that several transnational companies in the energy sector continue to hire new staff through outsourcing companies and affiliate them to a protection union in collusion with labour authorities. According to IndustriALL, officials at the Mexico City Local Conciliation and Arbitration Board (JLCACDMX) withhold information on collective bargaining agreements and union records, and delay procedures to give employers time to leak data on STRACC members and dismiss them. It refers in particular to a legal action to seek title brought by STRACC in June 2019 that was not dealt with by the JLCACDMX, leading to numerous dismissals.
5. 28. Regarding the UNTyPP, IndustriALL claims that the oil company  still refuses to recognize it as an interlocutor and blocks any union activity in the workplace. It also alleges that the oil company refuses to comply with the resolutions of the Federal Conciliation and Arbitration Board to reinstate dismissed workers who initiated the process of organizing the UNTyPP, as well as discriminating against those it identifies as UNTyPP affiliates in its admission and promotion processes.
6. 29. In terms of addressing the different dimensions of the issue of protection contracts and unions through the development and implementation of constitutional reform and its secondary legislation (recommendation (d)), IndustriALL argues that, while changes are being made for labour law transformation, the control groups of the employer protection collective contracting labour model are imposing themselves at a faster pace, and trade unionists continue to be harassed, threatened and dismissed. It alleges that influence peddling between officials and corporate lawyers continues, and that trade union organizations close to the new actors in government are being promoted.
7. 30. IndustriALL also argues that while the new Federal Labour Act (LFT), adopted on 1 May 2019, provides for sanctions against employers who interfere in trade union life and repress the exercise of freedom of association, there is no mechanism for this, nor measures to redress the harm suffered by those who are victims of repression, and that much of the LFT is therefore unenforceable in practice.
8. 31. IndustriALL further argues that, although the protocol for the legal validation of existing collective agreements, issued on 31 July 2019, provides for the obligation to consult workers to check whether they agree with their collective bargaining agreements, the responsibility for legitimization lies with the incumbent union and there have been several known cases of legitimization of a protection contract.
9. 32. Furthermore, according to IndustriALL, since the new Government came to power, it has applied a policy of austerity without objective criteria, which has had serious negative repercussions in the labour sphere, as the Ministry of Labour and Social Security, the labour courts, the labour inspectorate and the prosecutor’s offices do not have sufficient human and material resources to act. It affirms that the employers’ sector is taking advantage of the transition stage and the weaknesses of the State to consolidate protection contracts, using strategies such as hiring personnel through outsourcing, employment agencies, false self-employment, simulation of labour relations and temporary contracts, which results in a sustained process of labour precariousness and the nullification of freedom of association.
10. 33. IndustriALL adds that, while at the federal level, calls for the positions of labour judges and staff of the Federal Labour Conciliation and Registration Centre (CFCRL) are published, in the states this process is obscure and under the control of the local executive power in collusion with regionally influential economic groups, which maintain control of the bodies for the administration of justice, and for union registration and updating. In general, IndustriALL states that despite legal changes, the practice of protection contracts persists.
11. 34. In addition, IndustriALL submits new allegations concerning other situations relating to the use of trade unions and protection contracts and, in some cases, acts of discrimination and anti-union violence that were committed as a result of this issue. It alleges in particular: (i) the murder of Mr Santiago Rafael Cruz, organizer of the Farm Labor Organizing Committee (AFL CIO), in Monterrey on 9 April 2007; (ii) the disappearance of Mr Oscar Hernández Romero, activist supporting the National Union of Miners, Metalworkers and Allied Workers of the Republic of Mexico (SNTMMSSRM) in its organization campaign at the Media Luna mine owned by Torex Gold Resources, on 23 September 2009; (iii) the arbitrary arrest and detention of Mr Antonio Bautista Crespo, General Secretary of the Union of Workers of State Powers, Municipalities and Decentralized Bodies in Nayarit (SITEM), by members of the Attorney General’s Office of the State of Nayarit on 2 October 2020; (iv) the signing of protection contracts, anti-union dismissals, illegal recounts, acts of violence and intimidation, and death threats by several enterprises in the mining sector between 2008 and 2019; (v) the signing of protection contracts, as well as acts of interference and anti-union dismissals in the electricity sector between 2009 and 2020; (vi) the refusal to bargain collectively, anti-union dismissals, acts of harassment and threats in the media sector in 2017 and 2018; (vii) non-recognition of a trade union and acts of anti-union interference in the health sector in 2019 and 2020; (viii) anti-union dismissals, blacklisting, persecution of trade union leaders, as well as the imprisonment of a trade union advisor for three weeks in June 2020 in the maquila industry in the north of the country; (ix) the signing of protection contracts, anti-union dismissals, forced resignations, illegal recounts, acts of violence, intimidation and harassment, and an armed assault and attempted kidnapping in the rubber industry between 2015 and 2019; (x) the signing of protection contracts by transnational companies prior to the installation and operation of their workplaces in the wind energy sector; (xi) acts of anti-union interference by the Mexico City government in favour of protection unions; (xii) the non-recognition of a union and anti-union dismissals of several of its members and leaders in the beverage industry between 2017 and 2019; (xiii) the prevalence of employer protection collective bargaining, the use of outsourcing agencies for anti-union purposes and blacklisting in the electronics industry in Guadalajara; and (xiv) the administrative elimination of a union and its replacement by a protection union in the education sector in the State of Tabasco in June 2019.
12. 35. In communications dated 12 November 2020, 28 October 2021 and 25 January 2024, the Government provides information on the measures taken to combat the problem of protection contracts and unions through labour reform (recommendation (d)). According to the Government, the allegations made by the complainant organizations in the present case were addressed through this far-reaching transformation, which was successfully implemented.
13. 36. The Government indicates that the new labour model establishes the obligation of trade unions to prove their representativeness before and at the end of collective bargaining, as well as in the contractual reviews that must be carried out every two years. It explains that such representativeness must be accredited before the CFCRL, the body responsible for ensuring that the guarantees of a personal, free, secret and direct vote of the workers have been complied with.
14. 37. The Government also indicates that, in order to prevent contracts signed under the rules of the past from being included in the new labour model, the transitional regime of the reform included the obligation to review, within a period of four years, all those contracts signed prior to 1 May 2019. It states that this review is carried out through a legitimization process organized by the union holding the contract and supervised by the labour authorities to prove that the workers are aware of the contract and that they cast their personal, free, secret and direct vote under peaceful conditions.
15. 38. The Government also refers to other measures taken in the framework of the reform, such as the adoption of effective dispute resolution mechanisms through a pre-judicial conciliation body and expeditious jurisdictional processes by impartial and autonomous labour courts, as well as the establishment of democratic rules for the election of union leadership, and the establishment of transparency and accountability mechanisms applicable to trade unions.
16. 39. The Government points out that the legislative process by which the 2019 reform was approved was the product of a broad consensus between the Government and the most representative workers’ and employers’ organizations, which were invited to participate in the process through consultative forums in which the legislators of the Chamber of Deputies and the Senate of the Republic listened to their opinions, as well as those of specialists and academics.
17. 40. The Government specifies that among those invited were representatives of the complainant organizations in the present case, and that the forums proved to be pluralistic, inclusive and transparent. The Government affirms that this social dialogue has continued since then and has even been strengthened in recent years, and expresses its willingness to enter into dialogue with IndustriALL on the issues raised in this case.
18. 41. The Committee takes due note of the information provided by IndustriALL and the Government. With regard to the five specific situations concerning the STUHM, the STRACC, the UNTyPP, the first car manufacturer and the second car manufacturer (recommendation (a)), the Committee notes that IndustriALL states that: (i) it has not yet received any institutional or legal response; (ii) in the case of the STRACC, several transnational corporations continue to use protection unions with the complicity of the labour authorities, and numerous members of the STRACC were dismissed after the STRACC filed a legal action to seek title in June 2019; and (iii) in the case of the UNTyPP, the oil company continues to refuse to recognize the UNTyPP as an interlocutor and to comply with the reinstatement orders issued in favour of dismissed workers who initiated its organizing process, and continues to discriminate against its members. The Committee notes that the Government does not provide any information in relation to the five situations mentioned above but expresses its willingness to enter into dialogue with IndustriALL on the issues that are the subject of the present case. The Committee once again requests the Government to review with the organizations concerned the matters still pending in relation to the specific situations raised with respect to the STUHM, the STRACC, the UNTyPP, the first car manufacturer and the second car manufacturer, with a view to carrying out further investigations as appropriate 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 and reminds it that it may, if it so wishes, avail itself of the technical assistance of the Office.
19. 42. With regard to the application of the protocol on free collective bargaining (recommendation (b)), the Committee notes, on the basis of publicly available information, that the labour reform is fully in force and that the new regulations, including the General Guidelines for Trade Union Democracy Procedures issued on 17 August 2022, are already applicable. Noting that this issue is also followed by the Committee of Experts on the Application of Conventions and Recommendations (CEACR), the Committee trusts that these regulations will ensure the application of the principles of freedom of association and collective bargaining in law and in practice. In these circumstances, the Committee will not pursue the examination of this aspect of the case.
20. 43. As regards the additional allegations made by IndustriALL in 2018 (recommendation (c)), the Committee notes that they are not addressed in the Government’s communications. The Committee also notes that IndustriALL, in its 2020 communication, alleges further violations of the principles of freedom of association and collective bargaining through the practice of protection contracts, as well as acts of anti-union discrimination and violence that would be closely linked to this issue, in several sectors. While noting that some of the facts referred to date back to 2007, the Committee expresses great concern at the seriousness of some of the alleged facts, which include the murder of trade unionists, the disappearance of a trade union activist, the imprisonment of trade union leaders, an attempted kidnapping and death threats. In this regard, the Committee recalls that freedom of association can only be exercised in conditions in which fundamental rights, and in particular those relating to human life and personal safety, are fully respected and guaranteed, and that a genuinely free and independent trade union movement cannot develop in a climate of violence and uncertainty [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, paras 82 and 86]. With a view to ensuring that violence against trade unionists does not go unpunished, the Committee urges the Government to carry out the necessary investigations and provide its observations on the additional allegations made by IndustriALL in 2018 and 2020, including in particular the murders of Messrs Javier García Salinas, leader of the Union of workers of the “Union and Strength” Heroic Body of Firefighters of Mexico City, Víctor Sahuanitla Peña and Marcelino Sahuanitla Peña, members of SNTMMSSRM, Quintín Salgado, leader of the SNTMMSSRM, and Santiago Rafael Cruz, organizer of the AFL-CIO, the disappearance of Mr Oscar Hernández Romero, trade union activist, as well as the arbitrary detention of Mr Antonio Bautista Crespo, General Secretary of the SITEM.
21. 44. With regard to addressing the different dimensions of the problem of protection contracts and unions through the development and implementation of the constitutional reform and its secondary legislation (recommendation (d)), the Committee notes that, according to IndustriALL: (i) despite the legal changes being made, the control groups of the protective collective contracting model are imposing themselves more rapidly, and trade unionists continue to be harassed, threatened and dismissed; (ii) while the LFT provides for sanctions against acts of anti-union interference, there is no mechanism for this, nor redress measures, so that much of the LFT is unenforceable in practice; (iii) several protection contracts have been legitimized through the process established in the Protocol for the legal validation of existing collective agreements; and (iv) the austerity policy of the new Government has allowed the employers’ sector to take advantage of the lack of resources of the labour authorities to consolidate protection contracts through strategies of labour precariousness.
22. 45. The Committee notes that the Government, for its part, indicates that: (i) the allegations in the present case were addressed through various measures adopted in the framework of the labour reform, which was successfully implemented; (ii) the legislative process through which the reform was adopted was the product of a broad consensus between the Government and the most representative social partners; and (iii) the complainant organizations in this case were among the organizations invited to participate in the consultative forums on the reform.
23. 46. While welcoming the measures taken by the Government, the Committee also notes that IndustriALL alleges that the problem of protection contracts and trade unions remains and that there are gaps in the practical application of the reform, referring specifically to the lack of a mechanism to implement the provisions protecting against acts of anti-union discrimination and interference in the LFT, and to the legitimization of several protection contracts through the Protocol for the legal validation of existing collective agreements. Recalling that the legislative aspects of the present case were brought to the attention of the CEACR, the Committee encourages the Government to take steps, in consultation with the social partners, to address the above-mentioned issues, and requests it to inform the CEACR of any developments in this respect. In view of the above, the Committee will not pursue the examination of these matters.