2008 Annual Survey of violations of trade union rights - Mexico
|Publisher||International Trade Union Confederation|
|Publication Date||20 November 2008|
|Cite as||International Trade Union Confederation, 2008 Annual Survey of violations of trade union rights - Mexico, 20 November 2008, available at: http://www.refworld.org/docid/4c52ca7cc.html [accessed 11 July 2014]|
Capital: Mexico City
ILO Core Conventions Ratified: 29 – 87 – 100 – 105 – 111 – 182
The disputes in the mining industry gave rise to the largest mobilisations during 2007. Miners were confronted with harassment, repression and the violation of their trade union's autonomy. The legitimacy of the mining union's top leader was finally recognised. Union organiser Santiago Cruz was murdered at the Mexican office of the Farm Labour Organising Committee (FLOC) in Monterrey, Nuevo León. Miners affiliated to the SNTMMSRM became an ever-growing target of arbitrary arrests, death threats and physical violence. Two trade union leaders were murdered. Anti-union practices were reinforced in the electronics maquiladoras.
Trade union rights in law
Registration of unions: No prior authorisation is required to create a trade union. To obtain legal status, however, the unions must be listed in the Register of Associations, an office of the Labour and Social Protection Secretariat. The authorities may decline to "take note" of a request if they consider that the union has breached or does not meet the requirements established in the Federal Labour Law (Ley Federal del Trabajo). That judgement involves an examination of trade union procedures. Although it is possible to appeal against an inspector's report, there is no legal recourse for changing it or requiring that a new inspection be carried out. An unregistered union cannot call a strike or participate in collective agreements and is excluded from all tripartite committees.
Foreigners may not become members of trade union executive bodies.
Despite the ILO's repeated request, the State has still not fulfilled its promise to ratify Convention 98.
Restrictions in the public sector: The law imposes a trade union monopoly on State employees, prohibiting the coexistence of two or more unions in the same State body. Workers are obliged to join unions affiliated to the public service union, the FSTSE (Federación de Sindicatos de Trabajadores al Servicio del Estado). State employees may not leave their union. Public sector trade union officials may not stand for re-election.
The law also imposes a trade union monopoly on bank workers, who may only belong to the National Federation of Banking Unions.
Restrictions on right to strike: Clause XVIII of Article 123 of the Mexican Constitution states that "strikes shall be legal when their purpose is to establish equilibrium between the diverse factors of production, harmonising the rights of labour with those of capital. In the public services workers shall be required to provide ten days' notice to the conciliation and arbitration board (Junta de Conciliación y Arbitraje, JCA), of the proposed date on which work is to be suspended. Strikes shall be regarded as illegal only where the majority of the strikers carry out violent attacks on persons or property, or, in the event of war, where the former belong to government bodies and departments".
Employees in the public service may only call a strike in the event of the general and systematic violation of their rights set out in the Constitution. They must have the support of two thirds of the workers in the public body concerned. The law also enables the government to requisition workers in a national emergency, including when it is caused by an industrial dispute.
Trade union rights in practice and Violations in 2007
Background: President Felipe Calderón, who had still not dispelled the doubts over the legitimacy of his election, is taking an even tougher approach to social and economic policy than his predecessor Vicente Fox. Calderón appears determined to amend laws of key importance to Mexican society, such as the energy, social security and labour laws. The direction of the reforms is set to reinforce the neoliberal path taken by the governments of Mexico over recent decades. The authorities' support for the employers in the numerous labour disputes seen over the period, along with the harsh response to the unions and their leadership, are evidence of an alliance between the government and business, which is set to further weaken the already diluted labour rights of Mexican workers.
Trade union monopoly, protection contracts and exclusion clauses: The Supreme Court of Justice ruled in 1999 that the imposition of a trade union monopoly in the public sector was a violation of the freedom of association as set out in the Constitution. The government has yet to bring the law into line with this ruling.
Deficiencies in the Federal Employment Law have been exploited in order to create false collective agreements called "protection contracts". These contracts consist of an agreement whereby the company pays a monthly sum to the so-called union. In exchange, the union guarantees industrial peace. The exclusion clauses in these protection contracts give pro-management unions the right to demand the dismissal of certain workers. These clauses are often used to obtain the illegal dismissal of workers who prefer free trade unions. It has been noted that most protection contracts are signed by lawyers who represent the so-called trade unions. There are even websites containing "model contracts" that employers simply need to modify.
Precarious contracts: Many education, media, government agency and maquiladora workers, and the researchers at the Instituto Nacional de Antropología e Historia, are employed through "civil contracts for the provision of professional services" and are obliged, in some instances, to sign a declaration to acknowledge that these are not employment contracts. Under these terms, they are not legally permitted to organise or join a union, can only become members of civil associations and do not have the right to take strike action or negotiate collective agreements.
Maquiladoras: opposition to the establishment of democratic trade unions: Maquiladoras are continuing to exploit local workforces, and increasing numbers of indigenous workers are swelling the ranks of this category of insecure workers. Whilst depicted as a "necessary evil" for reducing unemployment, maquiladoras are characterised by unpaid overtime, sexual harassment, discrimination in employment, non-existent health and safety precautions, unfair dismissals and the denial of any organising rights. The dismissal of pregnant women workers is also endemic. The sub-contracting of women workers is frequently used as a means of avoiding any responsibilities.
Violation of trade union autonomy: Establishing an independent trade union, in other words a union that is not controlled by the employer, can resemble an obstacle course. The government exploits the difficulties associated with obtaining legal status, denying a union the right to register or pushing for the appointment of a given union leader over another.
In some instances, the employers themselves set up a union, although workers may not even be aware that there is a union in their factory. They have come to be known as "ghost" unions because there are no meetings, no elections and no collective bargaining. The government has also been seen to interfere with independent trade unionism by intervening in the decision to appoint or dismiss trade union leaders.
Right to strike undermined: Every year, thousands of strikes are called, of which only 0.3 per cent go ahead. The Labour Ministry claims that this is an indication of "industrial peace". In reality, the explanation lies in the complexity of the mechanisms for calling a strike and the workers' lack of confidence that the State will fulfil its obligation to defend the right to strike. In addition, employers often turn to the local conciliation and arbitration boards (JLCAs) to request that strikes be declared illegal, accusing the organisers of violating their own union statutes.
To prevent strikes from being declared illegal, employees constantly have to ensure that the employers do not remove the machinery from the plants. The State or employers often deploy tactics to have a strike declared illegal, such as hiring strike breakers to provoke acts of violence and calling on government forces. Another ploy is to draw out the procedure for as long as five years by filing never-ending lawsuits to break the workers' resolve and make it impossible for them to meet their own and their families' needs.
Dispute intensified by removal of union leader and violation of trade union autonomy: It was the dispute between the national mining, metal and associated workers' union, the SNTMMSRM (Sindicato Nacional de Trabajadores Mineros, Metalúrgicos y Similares), and Grupo México, the world's third largest copper producer, that provided the clearest evidence of the authorities' bias towards employers. The Labour Ministry deployed every resource at its disposal to defend the group. One of the factors in the dispute was the former Labour Minister's arbitrary removal from office of the SNTMMSRM General Secretary Napoleón Gómez Urrutia on 17 February 2006 and its appointment of Elías Morales to replace him (see 2006 Survey). The union took every step possible to defend the miners' majority decision, including legal and industrial action. The government finally had no option but to recognise the illegality of imposing Elías Morales as the general secretary and to ratify the legitimacy of Gómez Urrutia as the leader of the SNTMMSRM.
Mining union under constant attack: Miners affiliated to the SNTMMSRM became an ever-growing target of arbitrary arrests, death threats and physical violence during 2007. Attempts were made to undermine the organisation by establishing and registering yellow unions; provoking local clashes between workers (in which one miner was killed); and manipulating the law to obstruct the exercise of the right to strike. The claims filed by the relatives of those killed in mining accidents were left unsettled and little, if any, interest was shown in the search for adequate and rapid solutions to the safety problems in mines.
Strike over infringements of collective agreement: The strike called on 30 July by SNTMMSRM at its branches in Guerrero, Sonora and Zacatecas over Grupo México's constant violation of the collective agreements was still underway at the end of the year. Grupo México declared the strike illegal, managed to obtain a ruling from the federal mediation and arbitration board (Junta Federal de Conciliación Arbitraje) declaring that strike was "non-existent", and announced the dismissal of the 2176 strikers but was not able to enforce the measure, as the union was granted an injunction allowing it to continue with the collective action.
Union activists murdered: On 9 April, 29-year-old Santiago Cruz was tied by the hands and feet and beaten to death by unknown assailants at the Mexican office, in Monterrey, Nuevo León, of the Farm Labour Organising Committee (FLOC – an organisation defending the labour rights of farm workers with its head office in North Carolina, United States, affiliated to the US labour federation AFL-CIO). FLOC spokespersons stated that trade union investigations had uncovered widespread corruption among agencies recruiting farm labour for guest work in the United States and that the murder of Santiago Cruz was a message for the union to drop its investigations. Since its opening, the FLOC office in Mexico has been the target of deportation and death threats, robberies and vandalism.
Murder, repression and intimidation of miners: On 12 August, miner Reynaldo Hernández González, a member of branch 278 of SNTMMSRM, was shot in the face and killed in Nacozari, Sonora. The union denounced Grupo México for establishing a yellow union and provoking the violence that culminated in the death of Hernández González and the injury of over 20 workers. The legitimate union was peacefully demanding compliance with the injunction against the dismissal of workers, and their reinstatement, when it was attacked by a group of armed men from the pro-company union.
Labour rights defender threatened: On 19 July, Cristina Auerbach Benavides, a member of the workers' advocacy group Pastoral Laboral, was threatened in the car park in front of her home by two armed men who seized her van along with other personal belongings and important work documents. The workers' rights defender had been constantly tailed by vehicles without number plates for two months prior to the assault.
Protection contracts and rights violations in the maquiladoras: Employers remain determined to undercut labour rights in the maquila sector. On 22 March, Hitachi Global Storage Technologies México announced the closure of its plant in El Salto, Jalisco, leaving 4,500 workers jobless. The staff had been working for the company for periods ranging between six months and seven years. The company, like all those in the electronics sector, outsources the hiring of workers to employment agencies. Attempts to organise workers at other Hitachi plants led to the firing of several workers. Workers also reported the existence of a protection contract, which the "official" union confederation, the CROM (Confederación Obrera Mexicana), signed with the company and the subcontracting agency CASPEM.
Electronics industry violates workers' and trade union rights: The establishment of "ghost unions", the forcing of workers to join unions that do not represent them and the use of protection contracts is widespread among electronic multinationals. Such practices affect almost 90% of the workers in the sector.