Executive Summary

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©Her Majesty the Queen in Right of Canada, 2005
Cat. No.:  HS24-13/2005E-HTML
ISBN:  0-662-40195-6

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Background

In the preamble to the North American Agreement on Labour Cooperation (NAALC) the Governments of the three countries recall their resolve to improve working conditions and living standards in their respective territories and to protect, enhance and enforce basic workers' rights. These goals are reflected in obligations on each Party to fairly, effectively and transparently enforce its labour laws. They are pursued through cooperative activities, and by means of mechanisms for intergovernmental consultations, independent evaluations and dispute settlement.

Under Article 16(3) of the NAALC, the National Administrative Office (NAO) of each Party is to provide for the submission and receipt of public communications on labour law matters arising in the territory of another NAALC country, and is to review such matters in accordance with domestic procedures. The Canadian Guidelines for Filing Public Communications enable any person or organization to file with the Canadian NAO such public communications.

Public Communication CAN 2003-1 was submitted to the Canadian NAO by United Students Against Sweatshops (USAS), an American non governmental organization, and the Centro de Apoyo al Trabajador (CAT), a labour rights advocacy group in Mexico, on October 3, 2003. Amendments were added to the original submission on November 5 and 10, 2003, and February 13, 2004. A third petitioner, the Maquila Solidarity Network (MSN), a Canadian organization that works on labour issues in maquiladora factories and export processing zones, asked to be added to the Communication on January 29, 2004. The submitters also provided the NAO with additional written information on December 16, 2003, and January 8 and 30, 2004. The Canadian NAO accepted Public Communication CAN 2003-1 for review on March 12, 2004.

The Communication raises issues related to the enforcement of labour legislation in Mexico addressing three NAALC principles:  freedom of association, occupational health and safety, and minimum employment standards. The submitters also allege that Mexico failed to meet its obligations under articles 2, 3, 4, 5 and 7 under the NAALC.

CAN 2003-1 concerns events that occurred from 2000 to 2003 at Matamoros Garment, and between June 2003 and February 2004 at Tarrant México, two apparel factories in the state of Puebla, Mexico. In each case, workers had grievances about their working conditions, and when they complained to management, in their view, very little improved. They say that, because the incumbent unions in both plants did little to represent workers, they had to organize themselves. They staged a work stoppage to protest their situation, but with little effect. They next decided to form an independent union (SITEMAG at Matamoros Garment, and SUITTAR at Tarrant México) to negotiate with their employer, by seeking to register the new union with the appropriate authorities, so that it would have legal status to act on their behalf. Submitters allege that in both plants, the employer responded to the organizing efforts of the workers with a campaign of intimidation, dismissals and coercion, and, at Matamoros Garment, that the incumbent union participated in the intimidation.

Both petitions for registration were denied by the Local Conciliation and Arbitration Board (JLCA – Junta Local de Conciliación y Arbitraje) of the state of Puebla. The submitters say that the JLCA failed to provide a fair process for the registration of new unions, and failed to protect union supporters from discrimination and intimidation by company officials. They also say that the Mexican government has failed to ensure that the JLCA is impartial and independent. In addition, they allege in the case of Matamoros that local police and government authorities failed to protect workers from intimidation by the incumbent union.

Workers at Matamoros Garment did not avail themselves of the amparo process, a mechanism by which a tribunal's decision can be appealed on constitutional grounds. Workers say that they did not have sufficient time to do so within the 15-day period to file such an appeal. SUITTAR representatives did file an appeal but later withdrew from it.

The submitters also make a series of allegations with respect to the workers' underlying concerns about conditions in the two plants. They say that Mexican authorities failed to enforce laws on minimum wage, timely payment of wages, hours of work and overtime, severance pay in case of layoff, overtime pay, and prevention of occupational illnesses and injuries (lack of protective equipment, first aid supplies and medical services, poor ventilation, verbal and physical abuse, unsanitary cafeteria and rest rooms, lack of drinking water).

The submitters also argue that there has been "a persistent pattern of failure to enforce its labour law" on the part of Mexico. In this regard they refer to events in 2000-2001 at another factory, Kukdong International México in Atlixco, also in the state of Puebla, and to previous communications in which similar issues have been raised, including the following:  US 94-03, US 97-02, US 97-03, CAN 98-1, US 99-01 and US 2000-01.

Review Process

On July 30, 2004, the Canadian NAO requested consultations with the Mexican NAO, in accordance with Article 21 of the NAALC, which consisted in submitting a series of questions related to actions undertaken by Mexican authorities and events relevant to Public Communication CAN 2003-1. A response from the Mexican NAO was received on October 22, 2004.

As part of its review process, Canada also consulted with the submitters, representatives from Matamoros Garment and Tarrant México, the incumbent unions at these two factories, the companies mentioned in the submission, and Mexican lawyers. In addition, the Canadian NAO held a public meeting in Toronto, on May 28, 2004, to provide members of the public an opportunity to present additional information relevant to the review of CAN 2003-1. Provinces and territories were invited to the public meeting and were kept informed of the progress of the review.

Analysis and Findings

Union Registration Procedures
Freedom of association and the corresponding right to organize a union are constitutional rights in Mexico that are reinforced by federal legislation and provisions of international treaties incorporated into domestic law. Mexican workers have the right to join unions of their own choosing in an atmosphere free of outside interference. Of course, the enjoyment of that right depends in large measure upon the work of labour authorities, including providing timely and predictable union registration procedures, effective legal protection against interference, and the impartial application of labour laws.

Mexican labour legislation requires that union registration procedures operate in a timely and predictable manner. Union registration is a purely administrative procedure and Mexican labour law (LFT) appears to exclude any discretion to deny registration. Moreover, with respect to Convention 87 of the International Labour Organization (ILO), to which Mexico is a party, the Freedom of Association Committee has repeatedly emphasized that the freedom to organize a union without prior authorization requires that union registration procedures operate without delay and not be at the discretion of the registering authority.

The information presented to the Canadian NAO seems to support the submitters' allegations that the JLCA acted in a manner that exceeded clearly enunciated constraints on its discretion. The JLCA appears to have taken a highly technical approach in reviewing both independent unions' registration petitions and some of the grounds cited for denying the petitions have no apparent basis in the LFT.

While the JCLA may not be legally obligated in every case to draw technical errors to the attention of an applicant for registration, there is nothing in Mexican law that would have prevented it from doing so. In this case, such steps would have avoided delays that were inconsistent with ensuring the timely and predictable registration process contemplated by Mexican law.

Union registration is a matter in which time is clearly of the essence. The pattern of events surrounding the two petitions for registration filed by SITEMAG and SUITTAR raises concerns that the labour authorities caused significant delays in the registration of those unions without appropriate justification. The decisions in the SITEMAG and SUITTAR applications took 58 and 60 days respectively to render. No explanation of these delays was available in the course of this review. The LFT requires that registration be granted automatically to a union in the event that registration procedures take longer than 60 days to complete. This suggests that a 60-day period to complete the registration is not a normal delay, but rather one that is so excessive that it requires an automatic remedy.

In addition, when SUITTAR representatives sought amparo with respect to the JCLA's decision to deny registration, the JLCA failed to deliver its report on the decision to the District Court within the statutory deadline, which had the effect of delaying the amparo hearing.

The Canadian NAO finds it troubling that the SITEMAG petitioners did not seek amparo remedies with respect to the decision to deny registration to their union. The reasons provided by the workers for not pursuing this recourse in the SITEMAG case appear doubtful, as the deadline for filing an amparo action would not have begun to run until SITEMAG representatives had received the JCLA's decision. It is also troubling that the SUITTAR petitioners did not pursue their amparo case to its conclusion, though more understandable in light of the financial pressures faced by the workers who were parties to the amparo petition.

This pattern of events raises concerns about whether Mexico is in conformity with NAALC obligations to promote compliance with and effectively enforce national labour laws (Article 3), and to ensure that administrative proceedings for the enforcement of labour laws are not unnecessarily complicated and do not entail unwarranted delays (Article 5.1(d) ).

Impartiality of Labour Authorities
The effective application and enforcement of labour law rests to a large extent on fair and equitable labour tribunals and processes. The Puebla JLCA is organized as a tripartite body. The arguments presented in the communication suggest that the institutional affiliations and connections of the worker representatives on the JCLA may in some cases create an apprehension of bias or conflict of interest in dealing with petitions for registration on behalf of unions not affiliated with established trade union confederations.

Even if provisions of the LFT allow a party to a proceeding to challenge the participation of a JLCA member on the basis of bias or conflict of interest, it is not clear that they can provide an adequate remedy.

This raises a concern about whether there is some way, without abandoning the principles of tripartism, of addressing the possibility that members of the JLCA can be influenced by the fact that the organization or organizations that supported their election to the JLCA have a stake in the outcome of registration decisions. As noted in Public Communication CAN 98-1, it is uncertain that the current provisions of the LFT can ensure that the JLCA is impartial and independent and does not have any substantial interest in the outcome of proceedings as required by Article 5.4 of the NAALC.

Protections against Interference
With respect to interference in workers' organizing efforts from employers and established trade unions, the NAO notes that workers filed no complaints to remedy the intimidation and coercion that they allege. As a general matter, it is not appropriate to draw conclusions with respect to obligations to effectively enforce labour laws where enforcement is complaint-driven and complaints are not filed. In the absence of a direct refusal by the authorities to act upon a complaint, some onus to make use of available legal complaint processes must rest upon workers making a claim that legal protections were not properly enforced.

Information Available to Workers Represented by a Union
The information provided appears to indicate that, until a labour conflict started, some workers were unaware of a union already representing them and they were unable to obtain a copy of their collective agreement from the union that had negotiated it. Mexican labour law is in accordance with the principle of non-interference by the state in internal union affairs. However, this absence of regulation creates a risk that those who are represented by a union or covered by a collective contract may have little information about either. This in turn creates a risk that lack of information may impair the ability of workers to ensure that their union is acting on their behalf, to participate in its activities, and to exercise their right under Mexican law to personally enforce their rights under a collective contract. It may also impact on the freedom of workers not to associate with a union.

It is also unclear whether, under the LFT, workers can obtain a copy of the collective contract that governs their terms and conditions of employment by requesting it from the appropriate labour board. This raises concerns about whether Mexico is meeting its obligations to maintain high labour standards under NAALC Article 2, and its obligations under NAALC Article 4.2 to ensure that persons with a legally recognized interest have recourse to procedures by which they can enforce their rights under a collective contract.

Occupational Safety and Health
The Communication contains numerous allegations of violations of occupational safety and health (OSH) legislation and regulations at both Matamoros Garment and Tarrant México. As noted above, there is some onus upon workers to make use of available complaint procedures. Yet, workers do not appear even once to have filed a complaint with the relevant authorities to seek the intervention of inspection services to enforce OSH laws.

In the case of Matamoros Garment, workers did not bring their concerns about OSH violations to the attention of the enforcement authorities until the JLCA attended at the plant on January 13, 2003, in response to their work stoppage, and where, according to the submitters, workers complained informally about working conditions to a representative of the JLCA. In the case of Tarrant México, workers brought their OSH concerns to the attention of the authorities only when they sought the assistance of the Conciliation Board (JLC) to obtain a negotiated settlement with the employer. Since the function of the JLC is to conciliate disputes, it is reasonable that the JLC considered the matter closed when, on July 8, 2003, the workers' coalition representatives agreed to the 16-point settlement of their demands.

On the other hand, under Mexican law, the federal Secretaria del Trabajo y Prevision Social (STPS) has an obligation to conduct regular OSH inspections of workplaces. The Mexican NAO provided the Canadian NAO with specific dates upon which STPS officials carried out inspections at both Matamoros Garment and Tarrant México. The information before the Canadian NAO suggests that some OSH issues might have merited investigation and there was no operating joint OSH committee in either plant. It is appropriate to ask what steps STPS inspectors may have taken to address any health and safety hazards in the two plants. It would be important to know what matters SPTS inspectors examined in each plant, what if any violations they found, and what if any steps were taken to remedy such violations.

The Canadian NAO will continue to seek relevant information from the Mexican NAO, such as copies of the reports by STPS inspectors on their inspections at Matamoros Garment and Tarrant México, in order to formulate an appropriate recommendation to the Minister of Labour.

Minimum Employment Standards
In Puebla, minimum employment standards in workplaces falling within state enforcement jurisdiction can be enforced through complaint-driven inspection processes. They can also be enforced by filing a complaint with the JLCA. Other than in one instance at Matamoros Garment, where the issue seems to have been resolved to the satisfaction of the complainants, it appears that at no time did workers seek to enforce their minimum standards rights by making a formal complaint to the relevant authorities. In the absence of such complaints, there is little basis upon which to draw conclusions about the effectiveness of enforcement processes with regards to matters, such as involuntary overtime, that likely would only come to the attention of an inspector or other authority if a complaint were filed.

However, in the case of Matamoros Garment workers, the information before the Canadian NAO suggests that the JLCA was aware of the workers' concerns and when they were brought informally to the attention of the JLCA representatives, their response to these concerns was passive and discouraging to the workers. The main concern from the point of view of NAALC obligations is that the informal interactions of the JLCA with workers may be discouraging workers from using appropriate enforcement procedures. In the case of Tarrant México, as noted above, the JLC considered the matter closed when on July 8, 2003, the workers' coalition agreed to the 16-point settlement of their demands.

On the other hand, the Canadian NAO has concerns about the lack of evidence of action on the part of the JLCA to ensure that the procedures called for by the LFT were followed during the collective suspensions of employment at Matamoros Garment and at Tarrant México that preceded the eventual shutdown of each plant. In the case of Matamoros Garment, there appears to have been evidence at the outset that the closure was permanent, which would have entitled workers to statutory minimum severance payments, and it is not clear why the closure was treated as temporary. The Canadian NAO is also concerned that the relatively passive approach by the JLCA to wrongful dismissal claims may have left workers vulnerable to pressure to abandon or unduly compromise their rights.

The Canadian NAO has yet to receive any information concerning regular minimum standards inspections at either plant. The Canadian NAO will continue to seek such information with a view to formulating an appropriate recommendation to the Minister. The LFT also requires that the JLCA and JLC notify the appropriate public prosecutor's office when an employer has ceased paying wages to its workers. The Canadian NAO will also continue to enquire into whether such notification was given at the appropriate time, and if so, what action or decision was taken.

Reluctance of Workers to Seek Assistance from Mexican Authorities
Another issue of concern to the Canadian NAO is the reluctance of workers to seek the assistance of the authorities. From the information gathered by the Canadian NAO during its review, this was evident across a range of different issues, including not only alleged anti-union discrimination, but also alleged occupational safety and health and minimum employment standards violations. Workers repeatedly told the Canadian NAO that they had no confidence in the JLCA because it had, unfairly in their view, denied their petition for registration, and in light of the passivity of the authorities in various instances.

Recommendation

The NAO makes the following recommendation in the spirit of Cooperative Consultations and in a desire to build on our comparative knowledge and understanding of labour law and its enforcement in North America.

Pursuant to Article 22 of the NAALC, which provides that a Party may request in writing consultations with another Party at the ministerial level regarding any matter within the scope of the Agreement, the NAO recommends that the Minister of Labour seek consultations with the Mexican Secretary of Labour and Social Welfare on the following issues related to freedom of association:

1. ensuring timely and predictable union registration procedures;
2. how the requirement of the Agreement that labour boards (Juntas de Conciliación y Arbitraje in Mexico) be impartial and independent and not have any substantial interest in the outcome of decisions is respected in deciding upon union registration applications;
3. the enforcement of protections against interference in workers' rights to organize a union of their choosing, including layoff procedures and remedies to unjust dismissals; and
4. the dissemination of information on the content of collective bargaining agreements to union members and other interested parties.

The Canadian NAO may provide further recommendations to the Minister upon receipt of the following additional information from the Mexican NAO, or within 30 days, whichever is sooner, with respect to enforcement of occupational safety and health and minimum employment standards:

1. copies of the occupational safety and health STPS inspection reports;
2. OSH matters that were examined by inspectors, any violations found, and any steps taken to address these violations;
3. information regarding minimum employment standards inspections at either plant, and if any, copies of the inspectors' reports;
4. the actions taken by the JLCA with respect to the collective suspension of employment at both plants; and
5. whether notification to the public prosecutor' office was given when employers at both plants failed to make timely payment of wages to their workers.

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