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4. Mexican Labour Law

Review of Public Communication CAN 2003 – 1

<< Background | Table of Contents | PDF Version | Analysis and Findings >>

This section reviews the law that is relevant to the issues raised by Public Communication CAN 2003-1. To do so, it draws upon comparative labour law studies by the Commission for Labour Cooperation, including a study by the Secretariat of the Commission entitled Labour Relations Law in North America, and a tri-national study entitled Occupational Safety and Health Law in the United States, Mexico and Canada – an Overview. This section also includes information supplied by the Mexican National Administrative Office, and two well known Mexican labour law experts.

4.1 Overview

"Article 133 of the Mexican Constitution establishes a hierarchy among different types of law. The Constitution itself, followed by laws which emanate from the Constitution and duly ratified treaties, form the supreme law of the land. […]The law governing the labour relations of private sector workers in Mexico is found in several legal instruments."¹

The Political Constitution of the United Mexican States constitutes the country's basic charter and contains general labour principles. These principles are expanded on in the Federal Labour Law (LFT – Ley Federal del Trabajo), which is the key labour relations legislation in Mexico. International conventions and treaties are incorporated into domestic law after having been approved by the Senate and signed by the President of the Republic as provided for by Article 133 of the Constitution and Article 6 of the LFT. Court decisions can also affect labour law. Regulations, issued by the executive branch of the government, and procedures of labour agencies serve to implement particular statutes.

A legal framework for labour legislation is included in Article 123 of the Constitution, which aims to achieve a balance between labour and management interests. The LFT is the regulatory statute that implements the constitutional provisions of Article 123. It defines the individual and collective employment relationship and regulates organizing, collective bargaining and strikes. It also governs the makeup and functioning of the tripartite boards that administer labour justice and provide conciliation, mediation and arbitration services. In addition, the LFT covers minimum wages, hours of work and overtime, vacations, child labour, protection for working women, workplace safety and health, profit sharing, job training and other labour matters.

Mexico is a signatory to numerous international conventions and treaties. Those relevant to labour rights include: the International Labour Organization (ILO) Convention 87 on Freedom of Association and Protection of the Right to Organize; the International Covenant on Civil and Political Rights; the American Convention on Human Rights; and the International Covenant on Economic, Social and Cultural Rights.

The Mexican system of labour law is based on a series of fundamental principles, the most relevant of which are:

"Labour standards provide a balance and social justice in the relations between employees and employers;
Work is a right and a social duty;
Work is not an article of commerce;
Work must be performed under a system of freedom and dignity for the persons providing it;
Work must guarantee life, health, and a decent economic level of living for employees and their families;
There may not be differences among employees on the basis of race, sex, age, religious or political beliefs, or social standing;
There is freedom to work in legal activities;
Labour standards are mandatory in nature and workers' rights are irrevocable;
The scope of a labour standard is construed in favour of the employee when there is doubt;
It is presumed that a work relationship exists between the person providing a personal service and the person receiving it;
There is no time limit on the length of the work relationship, unless it is explicitly defined as being for a set time or for a specific job."²

Regarding the last two principles, a particularity of Mexican labour law is that every employee is covered by an individual and permanent employment contract based on the minimum work conditions stipulated in the Constitution and the LFT, whether or not the contract is written and whether or not the employee is also covered by a collective agreement.

While the federal government enacts labour legislation, the responsibility for its enforcement is shared, as provided for in Section XXXI of Article 123 of the Constitution, between the federal government and local governments, that is, the 31 states and the Federal District (D.F.). Except in key industries or sectors reserved by the Constitution for the federal jurisdiction, all enterprises fall within the enforcement jurisdiction of local authorities.

The Mexican Constitution establishes a system of state and federal tribunals and conciliation boards to resolve labour disputes. They are termed Juntas de Conciliación y Arbitraje (JCA) and Juntas de Conciliación (JC), and are located in the executive branch of government. They are charged with interpreting and enforcing the labour laws to resolve disputes arising out of labour relationships between workers and/or employers. At the federal level, they are called Juntas Federales (JF) and at the state level, Juntas Locales (JL).

The responsibilities of conciliation boards (JCs) are: bringing about conciliation in labour disputes, receiving claims, gathering evidence for JCA proceedings, and assisting the JCAs in the performance of their duties. Generally speaking, JCs are not adjudicative bodies. In addition, Mexican legislation establishes systems of government inspection to secure compliance with minimum employment standards and occupational safety and health.

The government of Mexico also helps workers assert their labour rights by providing guidance and advisory services, conciliation and representation in lawsuits by the Federal Office of the Labour Public Defender (PROFEDET – Procuraduria Federal de la Defensa del Trabajo). PROFEDET is a decentralized agency of the labour ministry (STPS – Secretaría del Trabajo y Previsión Social), with technical and administrative autonomy. Articles 530 to 536 of the LFT outline the functions, responsibilities and powers of this Office. One of its services is a communication program that provides information through internet, radio, television and written media, to labour and business community regarding labour rights. Its main objective is the prevention and conciliation of labour conflicts. Its services are free of charge. PROFEDET only handles cases in the industrial branches under federal jurisdiction. The state of Puebla has a similar office, called the Procuradoria de la Defensa del Trabajo, which covers the industries within that state's enforcement jurisdiction.

4.2 Freedom of Association

Freedom of association and the right to organize are embodied in the Mexican Constitution, as well as in the provisions of international treaties and Mexican federal law, both of which enjoy status as sources of law secondary only to the Constitution itself. The statements of basic rights all seem to be consistent with each other and there are cross references which suggest that they are expected to reinforce each other.

Section XVI of Article 123 of the Mexican Constitution states that "both employers and workers shall have the right to organize for the defence of their respective interests, by forming unions, professional associations, etc." Furthermore, the introductory clause of Article 123 has been construed to protect the right to bargain collectively. Article 9 of the Constitution, although it does not pertain to workers as such, is also of relevance to labour rights as it establishes the right of all citizens to freely associate for lawful purposes.

Articles 354 to 358 of the LFT define a trade union and recognize freedom of association of workers and employers, as well as their right to form and belong to a trade union or to abstain from joining one.

In addition, a number of principles from international covenants and treaties adopted by the Mexican Government protect workers' freedom of association. Articles 2 and 3 of ILO Convention 87 as well as Article 22 of the International Covenant on Civil and Political Rights guarantee workers the right to establish and join organizations of their own choosing and prevent interference from public authorities. Mexico has also ratified the American Convention on Human Rights which in Article 16 states that everyone has the right to associate freely for ideological, religious, political, economic, labour, social, cultural, sports, or other purposes within the limits imposed by legal restrictions in the interest of national security, public safety, order, health, and morals or freedom of others.

4.2.1 Registration of Unions

Under the LFT, any group of 20 or more workers in active employment may form a trade union without the need for previous authorization. However, in Mexico, a trade union requires a public act of state called registro to obtain the status needed to engage in most legal, contractual or commercial activities on behalf of its members. Articles 374 and 375 of the LFT ensure that trade unions enjoy full legal personality and are recognized as representative of groups of workers, though workers may choose to defend their own rights themselves in some cases. Without registration, unions can still hold meetings, elect officers, make demands on employers, issue public statements and the like, in keeping with the principle of freedom of association. However, other parties need not respond to their actions since unregistered unions are treated as lacking the required legal capacity. Therefore, union registration is the key to collective bargaining.

4.2.1.a Procedures

Under Article 365 of the LFT, unions within the federal jurisdiction are to register with the STPS and unions within local (state or Federal District) jurisdiction are to register with the local-level JCA (JLCA).

The legal requirements for obtaining registration are minimal and the granting of registration should be a purely administrative act.

Article 365 lists the documents the unions must submit in duplicate, which are:

an authorized copy of the formative assembly proceedings;
a list showing the number of union members with their names and addresses, and the name and address of the employer, company or establishment in which they are employed;
an authorized copy of the union by-laws; and
an authorized copy of the assembly proceedings where the executive committee was elected.

These documents must be authenticated by the union's General Secretary, the Organizing Secretary and the Recording Secretary.

4.2.1.b Timeliness of Decision

Article 366 notes that authorities must resolve registration applications within 60 days. If the authority does not render a decision within a period of sixty days, the applicants may request that it issues a decision; if it fails to do so within three days of the request being submitted, registration shall be considered to have been effected for all legal purposes, thereby requiring the authority to issue the respective documentation within the next three days. These requirements are consistent with and reinforced by those of ILO Convention 87. The Freedom of Association Committee of the Governing Body of the ILO has repeatedly interpreted Convention 87's protection of freedom of association as requiring that the formalities prescribed by law for the establishment of a union should not be applied in such a way as to delay the setting up of the organization.

4.2.1.c Notification of Decision

Articles 741 and 742 require that personal notifications of a decision be at the domicile stipulated in the files. Such notifications must be carried out within five days following their date (Article 750) and the Clerk commits a fault if he fails to make a notification in accordance with the provisions of the LFT or within the required time period (Article 640).

4.2.1.d Grounds upon which Registration Can Be Denied

Article 366 states that union registration may be refused only if:

the union does not have the objectives and purposes required by Article 356;
the union does not have the number of constituent members required by Article 364; or
the documents listed in Article 365 are not submitted.

Article 364 states that "in determining the number of workers, those whose labour relationship was terminated or in whose case notice of dismissal was given at any time during the thirty days preceding the date on which the application for registration of the trade union is made and the date on which such registration is granted shall be taken into account".

If the above-noted requirements are fulfilled, Article 366 states that "the competent authorities shall not refuse registration".

Article 366 of the LFT is consistent with and reinforced by ILO Convention 87. The Freedom of Association Committee of the Governing Body of the ILO has emphasized that a discretionary approval process for registration of unions is inconsistent with the freedom of association protections of Convention 87, and that the precise legal requirements for registration should be clearly defined.

4.2.1.e Correction of Technical Errors in Applications for Registration

There is some disagreement among authorities and experts in Mexico on the question of whether the government of authority handling a registration petition has an obligation to notify petitioners of technical discrepancies in a petition so that they may be corrected. Article 685 of the LFT mentions that "if a worker's petition is incomplete, in that it does not cover all the matters on which an award could be made", the competent Board shall correct the petition when it is submitted. Article 873 further states that when the plaintiff is a worker or his beneficiaries, the JCA shall note any irregularities or "anything which might lead to contradictory suits […] which would allow the defendant to set forth defects or omissions incurred therein and thus prevent the suit", and allow that such deficiencies or omissions be corrected within a term of three days.

However, the above articles refer to labour dispute proceedings and do not specify whether they apply to union registrations. Union registration is an administrative procedure. Some would therefore argue that under the LFT, there is no legal provision requiring JCAs to remedy deficiencies or omissions in the documentation submitted in a registro petition. This is the position described by the Mexican NAO. On the other hand, some jurists have argued that in the absence of provisions in the law regulating the handling of technical deficiencies in administrative procedures, the law should be interpreted by analogy to provisions in the Constitution, the LFT and relevant international treaties regulating similar matters, and thus the requirement to permit an opportunity to correct technical deficiencies should be applied to union registration procedures. In any event, it appears that nothing in Mexican law would prevent an authority handling a registration application from drawing technical deficiencies to the attention of a registration applicant so that those deficiencies could be corrected.

4.2.1.f Appeal Process

If a union seeking registration disagrees with a decision denying registration, it may seek judicial review of the decision by filing an indirect amparo action, which is an appeal based on alleged violations of constitutional guarantees, under the terms of Articles 114 and 116 of the Ley de Amparo (LA).

An amparo is a special recourse authorized under Articles 103 and 107 of the Constitution. It is an appeal for judicial review based on the claim that a government authority has violated constitutional rights through the application of a law or by judicial or administrative decision. An amparo action must be filed before the given federal District Court on Labour Matters that has jurisdiction. A decision handed down by a federal District Court may be appealed to a Federal Court of Appeal and then to the Mexican Supreme Court on constitutional and due process grounds.

An amparo action must be brought within 15 business days of the decision with respect to which amparo is sought. Article 21 of the LA specifies that this 15-day period to file an appeal starts the day after the petitioner is notified of the decision. Where the petitioner has provided an address at which notification is to be given, notification must be delivered in person to that address. A petitioner who does not receive notification in that manner may have any other form of notification declared null and obtain an order that proper notification be given.

Article 148 of the LA states that the Court receiving a request must decide within 24 hours whether to admit or reject a petition filed before it. Article 147 indicates that when the District Court does not find any cause of inadmissibility, the judge admits it, requests a report of justification (informe con justificación) from the authorities responsible for the alleged violation, and schedules the hearing within 30 days.

Article 149 relates to the report of justification. The authority whose decision is challenged must submit their report within five days, but this period can be extended for an extra five days when this is justified. In any case, the report must be submitted at least eight days before the hearing. When the relevant authority does not submit such report within the time limit, the petitioner or an affected third party can request the postponement or suspension of the hearing. Otherwise, Article 149 allows the Court judge to accept the appellant's claims as true if no justification is provided. Fines can be imposed on an authority not submitting its justification report.

4.2.2 Workers' Choice of Union Representative

Mexican law protects workers' choice of union representative through provisions that entitle workers to form unions with minimal formality and without state interference, provisions that entitle them to change their union representative, prohibitions against interference in such choices, and recognition of workers' freedom not to associate with a union, as set out in Article 358 of the LFT.

4.2.2.a Forming a Union and Engaging in Collective Bargaining

Workers have the right to form trade unions without need for previous authorization. Unions have the right to adopt their own constitution and by-laws, to elect their representatives and to organize their administration and activities.

Articles 386 to 439 of the LFT set out the main provisions relevant to collective bargaining on Mexico. The LFT definition of a collective contract establishes that only trade unions can enter into such an agreement. The union that signs a collective contract is considered to hold title to the agreement.

A union that holds title to a collective agreement has the exclusive right to administer, enforce and renegotiate its terms. Moreover, a collective contract must be extended to cover all workers in a given enterprise, whether or not they are members of that union. Article 388 outlines the rules about who holds the right to bargain and sign a collective agreement when there are several unions in the same enterprise.

In Mexico, a union may be formed and registered, bargain collectively, and obtain title to a collective agreement without an election or presenting other evidence to a public authority that it has the support of a majority of the workers that it seeks to represent. This lack of direct regulation reflects the principle of non interference in union affairs.

4.2.2.b Changing Union Representative

"Any union of a type appropriate to the workers in question can at any time seek support from workers covered by a collective contract and file with the relevant CAB [JCA] a challenge to the incumbent union's title to that contract. The CAB will then hold hearings into the challenge. If the incumbent union does not prove its majority support during such proceedings, it will lose title to the collective contract, and thus lose the right to administer and negotiate revisions to it. The union that demonstrates majority support obtains or maintains title to the contract, as the case may be. In deciding such challenges, a CAB may supervise a vote by the workers, known as a recuento, in order to obtain evidence of which union enjoys majority support. A recuento will not necessarily be conducted if other evidence is sufficient to prove majority support."³

4.2.3 Union Self-Governance and Accountability to Union Members

"Under Mexican labor law, unions are free to act within the mandate of their constitution and bylaws under the direction of their own leadership. This principle of trade union autonomy is an important element of Mexican labour law. Except for the intervention of the authorities with respect to union registration, government interventions are not contemplated in the FLL [LFT]. As already noted, Article 359 of the FLL grants unions the right to establish their constitution and bylaws, to freely elect their representatives, to organize their administration and activities, and to formulate their program of action."⁴

"Article 371 of the FLL [LFT] sets out a list of subjects which a union's bylaws must address, including such matters as the rights and obligations of members; the mode of payment and amount of union dues; and rules for the administration, acquisition and alienation of property constituting the assets of the union. A union member has a legal right to ensure that these bylaws are followed and may file a complaint with the relevant CAB [JCA] to do so."⁵

"Article 373 of the FLL [LFT] requires the board of directors of a union to provide a complete and detailed account of the administration of the union's assets to a general meeting of the union at least once every six months. Unions must report to the relevant CAB [JCA] the makeup of their leadership, as well as registering new union members and any changes in leadership. The CABs treat union membership lists as confidential. Unions also must report any change in their constitution or bylaws and respond to inquiries from the authorities about any union-related actions."⁶

4.2.3.a Access to Collective Contracts

Under the LFT, the parties to a collective contract are the employer and the union. Article 390 provides that every collective agreement must be in writing, produced in triplicate, one copy thereof being retained by each party and the third deposited with the appropriate JCA. However, no specific provision exists requiring workers to ratify or receive a copy of the collective agreement.

4.2.4 Protection against Interference in the Exercise of Freedom of Association

Mexican labour law protects against interference in the exercise of freedom of association by prohibiting dismissals except for just cause, by regulating collective layoffs and terminations so that they take place in order of reverse seniority, and by directly prohibiting many forms of interference.

4.2.4.a Just Cause Protection

Article 123, Section XXII, of the Constitution "provides that an employer who dismisses a worker without justifiable cause or because he has entered an association or union, […] shall be required, at the election of the worker, either to fulfill the contract or to indemnify him in the amount of three months' wages".⁷

Article 46 of the LFT states that the labour relationship may be cancelled at any time by a worker or an employer having just cause, without incurring liability. Article 47 defines 15 "just causes" for discharge and makes unlawful a dismissal that is not based on one or more of the permissible reasons spelled out in the law. Union activity is not among those reasons.

The recourse opened to a worker alleging an improper dismissal is to make a claim to the relevant JCA on the ground that the dismissal was improper. Under Article 784 of the LFT, the burden of proof is on the employer to show that there was legal cause for the termination of employment. Thus, a discharged Mexican worker does not have to show that antiunion motivation was a factor in the dismissal; the burden always rests with the employer to prove that the reason for the discharge falls within the statutory definition of just cause for discharge. Under general principles of Mexican labour law, any ambiguities in the evidence with respect to whether just cause existed must be resolved in favour of the worker.

Article 48 of the LFT gives the worker who is discharged for union activity a choice between seeking a reinstatement or accepting a compensation in the form of three months' wages. In addition, if the employer fails to prove just cause of dismissal at the hearing, the worker shall be furthermore entitled to payment of his wages in arrears from the day of dismissal until the day on which the award is granted.

4.2.4.b Regulation of Collective Layoffs and Dismissals

The LFT regulates collective layoffs and dismissals in a similar manner to individual terminations of employment, providing a specific list of reasons under which layoffs and dismissals may actually take place.

"In articles 427 through 439, the LFT provides a mechanism by which an employer may suspend or terminate collective labour relations in certain cases of economic necessity. Suspension of collective labour relations is somewhat analogous to a temporary layoff under Canadian or U.S. labour law, and a termination is analogous to a permanent layoff or plant closure. Articles 427 and 434 stipulate the legally recognized grounds for such measures.⁸ Suspension or termination of collective labour relations is subject to CAB [JCA] approval. Except in cases falling under Article 427, Part I, or Article 434, Part I or V,⁹ CAB authorization must be obtained prior to the suspension or termination. Suspension or reduction of the work hours of particular workers takes place in reverse seniority order."¹⁰ The JLCA must also ensure that legal requirements for severance and other payment to workers are met.

4.2.4.c Prohibitions against Coercion

The right of workers to organize trade unions is reinforced by the prohibitions contained in Article 133 against certain conduct on the part of employers such as coercing employees to join or withdraw from a trade union, intervening in the internal activities of a union, and performing any act in restraint of the rights granted to employees by law.

Article 133 of the LFT provides that employers shall not "compel an employee by coercion or any other means to join or withdraw from the union or association of which he or she is a member, or to vote for a specified candidate". This could be interpreted to cover condoning or knowingly permitting coercion or interference by third parties. Article 133 also prohibits employers from performing any act "in restraint of the rights granted to employees by law". The system of blacklisting employees, on the part on employers, with a view to prevent workers from future employment is also prohibited by Article 133.

Mexican labour law does not specifically address other forms of employer interference with freedom of association and the right to organize, or such interference by trade unions. However, ILO Convention 87 applies to labour relations in Mexico. The ILO's Committee of Experts on the Application of Conventions and Recommendations has stated that "the protection afforded to workers and trade union officials against acts of antiunion discrimination constitutes an essential aspect of freedom of association, since such acts may result in practice in denial of the guarantees laid down in Convention No. 87".¹¹ Similarly, Mexico has ratified ILO Convention 135, Article 1 of which states that "workers' representatives in the undertaking shall enjoy effective protection against any act prejudicial to them, including dismissal, based on their status or activities as workers' representative or on union membership or participation in union activities."

While the LFT itself does not specifically prohibit coercive conduct on the part of trade unions, Article 135 prohibits workers from "carry[ing] out propaganda of any kind within the establishment during working hours".

Finally, unions and their members are entitled to full protection of the criminal laws that prohibit physical assaults and damage to property and to the same police protection from such harms as other Mexican residents.

4.2.5 Enforcement

JCAs have jurisdiction to enforce rights to freedom of association. Such proceedings can be initiated by filing a complaint with the appropriate JCA.

4.3 Employment Standards

Minimum employment standards fall mostly under Title III of the LFT, which regulates the hours of work and overtime; rest days and vacation; minimum wage, bonuses and benefits; pay equity; and profit-sharing.

4.3.1 Minimum Wage

A minimum wage may be set at a general level for a geographic area, or specifically for occupational groups. The general minimum wage is valid for all the workers in a given geographic area while the minimum occupational wages apply to the workers in specific branches of activity, occupations, trade or special work, which are determined within one or more geographic areas. Minimum wages are established each year by the Council of Representatives (Consejo de Representantes) of the National Minimum Wage Committee (Comisión Nacional de los Salarios Minimos), which is composed of workers', employers' and government representatives (Articles 94, 95, 554 and 573 of the LFT). Minimum wages come into force on January 1^st of each year (LFT, Article 570). Wages can be fixed according to unit of time or on a piecework basis. If it is fixed on a piecework basis, the remuneration shall be such that the amount paid shall be equal at least to the minimum wage for regular work during a normal work day.

Article 132 of the LFT states that employers are required to pay the workers the wages and benefits to which they are entitled. Wages include remuneration at the daily rate, tips, housing, bonuses, commissions, benefits in kind and any other sum of money or benefit given to the worker on account of his or her work, such as punctuality and performance premiums. Article 85 adds that in no case can an employer pay less than the amounts fixed by law as a minimum. Article 99 establishes workers' right to payment of wages and states that this right cannot be waived.

In addition, the LFT prescribes that workers are entitled to an annual Christmas bonus equal to no less than 15 days' wages or a proportional amount for those who have not completed one year of service. The LFT also provides for annual profit sharing at a rate fixed by the National Committee for Workers' Profit-Sharing in Enterprises (Comisión Nacional para la Participación de los Trabajadores en las Utilidades de las Empresas), as provided by Articles 117-131.

4.3.2 Payment of Wages

The LFT provides that intervals between pay days shall in no case exceed one week for manual workers (Article 88). Articles 108 and 109 of the LFT stipulate that payments must be made in the place where workers perform their work, on a working day, and during working hours or immediately thereafter.

4.3.3 Hours of Work and Overtime

Article 422 and 423 of the LFT provide for internal employment regulations that should specify the hours of arrival and departure, the time at which work will begin and end on a regular workday, the mealtimes, the rest periods during the day, and the days and place for the payment of wages. However, the LFT also sets minimum standards regarding work schedules and rest periods.

Under the LFT, the maximum length of the working day is eight hours per day with a rest period of at least half an hour every day. One rest day with full pay is required every six days, usually Sunday (Articles 60, 61, 63 and 69). Article 64 notes that if a worker is unable to leave his workplace during the rest periods and meal times, such periods are deemed to be hours actually worked and must be included in the daily hours of work.

A normal week is understood as six days, which is the equivalent of 48 hours per week. These hours may also be distributed over 5½ days or 5 days, which means in the latter case, days of approximately 10 hours of work, and 9 hours daily if employees work 4 hours on Saturday.

A regular work day may be extended up to a maximum of three hours a day, a maximum of three times a week, for a maximum of nine hours of overtime per week, in exceptional circumstances (LFT, Article 66). No worker can be compelled to work overtime exceeding nine hours weekly (LFT, Article 68).

Article 74 of the LFT lists compulsory rest days for all workers, which include November 20th. On such compulsory holidays, the workers and their employer must decide how many shall be obliged to work, and if no agreement can be reached, the matter must be submitted to the relevant JC or JCA (Article 75).

4.3.4 Layoffs and Severance Pay

As noted above, the LFT requires prior approval by the JCA before layoffs or collective terminations of employment for economic reasons. "In approving a suspension, the CAB [JCA] awards compensation to the workers in question of up to one month's salary. Workers whose employment is terminated are entitled to receive at least three months' pay plus a seniority allowance […]. Suspended workers maintain rights to be recalled to their former positions. In the event that a terminated undertaking is started up again, the hiring preference clauses in the collective contract will apply."¹²

Under Article 431 of the LFT, a union or workers can request that the JCA verify every six months whether the causes of a collective layoff still apply. If the JCA determines that they do not, it will order that workers be returned to their jobs within 30 days. If the employer refuses to do so, workers are entitled to severance pay in accordance with Article 50 of the LFT.

4.3.5 Waivers of Rights

"In Mexico every employee works under an individual contract of employment incorporating minimal terms specified in the Constitution and the FLL [LFT], whether or not the contract is written and whether or not the employee is also covered by a collective agreement. Individuals can negotiate for terms or conditions superior, but not inferior, to those required by law for all individual contracts of employment."¹³

Section XXVII of Article 123 of the Constitution stipulates that parts of an agreement that constitute a waiver by the worker of indemnification to which he is entitled due to, among others, being discharged, or of any right designed to favour the worker, "shall be considered null and void and not binding on the contracting parties, even if expressed in the contract". Similarly, Article 33 of the LFT states that "any waiver by a worker of the remuneration payable to him or any wage supplements or other payments arising out of the services performed by him, irrespective of their form or what they are called, shall be null and void". Article 33 adds that the JCA shall approve an agreement between an employer and a worker unless there is a clause under which the worker waives his rights. Furthermore, Article 5 of the LFT provides that any written or verbal stipulation providing for the worker's waiver of any of his rights or prerogatives established by labour norms shall be devoid of legal effect and shall not hinder enjoyment and exercise of the rights concerned.

This seems to support the claim by certain experts that Mexican labour law does not allow for workers waiving their rights and benefits. However, many within the Mexican system act on the understanding that a right, such as a right to severance pay upon termination of employment, does not crystallize in the hands of a worker until it is recognized as such by the appropriate adjudicating authority. On this understanding, for example, prior to the adjudication of a claim, a worker and an employer may settle that claim for an amount less than the severance pay amounts provided for in the law.

4.3.6 Enforcement

Minimum employment standards are enforced through inspection systems and through complaint-driven adjudication. In Puebla, inspection-based enforcement of minimum employment standards in state-regulated industries falls to the state-level authorities. Inspections are nonetheless governed by the federal General Regulation on Inspection, discussed in the section on occupational safety and health, below.

Under Article 1003 of the LFT, any worker or trade union may report violations of the labour norms to the authorities. Title XVI of the LFT provides for penalties to be imposed on employers who fail to observe any of the labour norms prescribed by this Law. The same applies to employers who fail to observe the internal employment rules set for a particular workplace. Generally, employers are subject to fines based on the daily amount of the general minimum wage in force at the place where the violation occurred.

Labour authorities have special obligations in the case of non-payment of wages. Under the LFT, Chairpersons of JCAs and labour inspectors "have the obligation to advise the Public Ministry concerning an employer […] who has delayed paying or has paid his workers a lesser amount of salary than the general minimum wage" (Article 547). An employer who has paid one or more workers salaries less than the minimum general wage is subject to prison sentences in addition to fines (Article 1004). Furthermore, Articles 547 and 548 state that labour inspectors are liable to a reprimand, suspension or dismissal if they do not advise the Public Minister concerning an employer who has omitted or delayed paying the general minimum salary to any of his workers.

4.4 Occupational Safety and Health

Article 123 of the Constitution requires each employer to ensure occupational safety and health (OSH) in the workplace and to instruct and train workers. All employers are required to observe regulations on hygiene and health, to adopt measures for the prevention of accidents, and to ensure the greatest possible guarantee for the health and safety of workers.

Title IX of the LFT implements the constitutional provisions of Article 123 with respect to OSH. It addresses issues such as the employer's liability, compensation for death and injuries, and prevention of occupational injuries and illnesses. It also contains a list of occupational diseases and tables prescribing degrees of permanent incapacity.

Furthermore, Mexico has ratified several International Labour Organization (ILO) conventions pertinent to OSH issues. The most important ones are Convention 150 on Labour Administration, Convention 155 on Occupational Safety and Health, Convention 161 on Occupational Health Services and Convention 170 on Chemicals.

Convention 155 requires governments to "formulate, implement and periodically review a coherent national policy on occupational safety and health [...] and the working environment". The objective of such policy must be to prevent injuries and illnesses (Article 4).

Convention 161 on Occupational Health Services calls for the creation of preventive Health Services to promote, on a cooperative basis, the well-being of workers. It requires that all workers be informed of health hazards involved in their work. Occupational health services are also to be informed of any factor that is or could be detrimental to workers' health and of any occurrences of health problems among workers.

Finally, Convention 170 on Chemicals calls for detailed regulations on the safe use of chemical products in workplaces. In particular, it requires signatories to formulate, implement and periodically review a coherent policy on safety in the use of chemicals at work. In addition to imposing obligations on government authorities and employers with respect to proper labelling of chemicals, it requires that workers be adequately informed and trained about the risks associated with handling these chemicals and the necessary precautions to be taken when they are used. On the issue of exposure, employers must ensure that workers are not exposed to chemicals to an extent which exceeds the exposure limits established by the competent authority.

4.4.1 Occupational Safety and Health Legislation and Regulations

Mexican labour law related to occupational safety and health (OSH) is detailed and comprehensive and the regulations have been updated in recent years. The legislation contains many cross-references (including to international conventions) which are expected to reinforce one another. Its holistic approach clearly aims at protecting workers and, to a large degree, places the responsibility of achieving this goal on employers with supervision by labour authorities.

In content, Mexico's workplace safety and health law is entirely federal. The obligations and rules related to OSH in Mexico contained in various laws and regulations are enforced by different government departments and agencies. The main laws are the LFT and the Ley del Seguro Social (Social Security Law – LSS). The Codigo Fiscal (Federal Fiscal Code), the Ley Federal de Procedimiento Administrativo (Federal Law on Administrative Procedure) for sectors under federal jurisdiction and their equivalents at the state level for industries under state jurisdictions, and the Ley de Amparo, play roles in the sanction and review/appeal process.

The LFT places upon employers duties to ensure workplace safety and health, maintain compliance verification systems, and provide workers with training and information about risks; and it provides the labour authorities "with responsibility to issue regulations, to establish tripartite advisory commissions, to study problems and recommend solutions, to facilitate operation of enterprise joint committees, and to conduct inspections and ensure compliance".¹⁴ The LSS "provides a system of financial protection, including workers' compensation benefits, administered by the Mexican Institute of Social Security"¹⁵ (IMSS – Instituto Mexicano del Seguro Social).

The Federal Regulation for Occupational Safety and Sanitation and the Environment (RFSHMAT – Reglamento federal de seguridad, higiene y medio ambiente de trabajo), promulgated in 1997, "details employer and employee duties, sets out various safety and health rules, and enacts several new or special initiatives [such as the] promotion of private "verification units"."¹⁶

Under the authority of the Federal Measures and Standards Act (LFMN – Ley federal sobre metrología y normalización), technical standards on particular hazards and particular types of work are issued as Official Mexican Standards (NOM – Normas oficiales mexicanas). The LFMN promotes transparency and effectiveness in the elaboration and observance of NOMs. Its field of application includes the certification, verification and inspection of products, processes, methods, installations, services or activities to ensure they are in conformity with NOMs.

Key agencies are the Secretaría del Trabajo y Previsión Social (STPS), the IMSS, and the National Advisory Commission on OSH (CCNSHT – Comisión consultiva nacional de seguridad e higiene en el trabajo). Each state has its own State Commission on OSH (CCESHT). The purpose of these commissions is to study and propose adoption of prevention measures, and to review drafts standards. They are presided over by the Governors of the State and are made up of representatives from the STPS, the IMSS, employer organizations and trade unions (Article 512.B of the LFT). IMSS administers the chief worker compensation program and coordinates with STPS in carrying out prevention programs.

The STPS drafts technical safety and health standards, performs inspections, sets penalties, promotes operation of joint OSH committees, maintains hazard statistics, promotes research, and disseminates information. The Internal Regulation of the Department of Labour and Social Welfare (RISTPS – Reglamento interior de la STPS) lays out the internal procedures to be followed by STPS in carrying out its responsibilities. Its General Directorate for Federal Labour Inspection (DGIFT – Dirección general de inspección federal del trabajo) is responsible for workplace inspections, while the promotion of OSH is the responsibility of the General Directorate for Workplace Safety and Health (DGSHT – Dirección general de seguridad e higiene en el trabajo).

4.4.1.a Prevention of Occupational Injuries and Illnesses

Article 512 of the LFT states that the regulations under the Law are intended to prevent "employment injuries and to ensure that the work is performed under conditions guaranteeing the workers' safety and life". Under Article 132, an employer has the obligation to prevent job-related harm to the worker. Article 133 also requires employers to ensure that tools, equipment and working material are of good quality and in good condition. Moreover, they are required to distribute and post in conspicuous places where work is performed, pertinent provisions of the health and safety rules and instructions.

Article 504 of the LFT requires employers to report to the appropriate JC, JCA or Inspectorate of Labour, any accidents which may occur within the 72 hours immediately following their occurrence. On the other hand, workers have an obligation, under Article 134, to observe the prevention and health measures prescribed by the employer or ordered by the competent authorities. Employers are also to provide appropriate training to workers. Article 153 lists the kind of training that employers must offer, including, among others, training intended to help prevent work accidents.

Furthermore, clauses relative to an employer's obligation to provide job training to workers must be included in collective contracts. Within 15 days following the conclusion of a collective contract, employers must present the plans and programs for training that the parties have agreed to establish to STPS for its approval. An employer who does not submit such plans and programs or does not implement them is liable to be fined in accordance with the LFT.

4.4.1.b Medical Services

Article 132 of the LFT requires employers to keep proper medications and therapeutic materials in the workplace. Article 504 of the LFT requires each employer of more than 300 workers to establish a sick bay with the necessary medical and auxiliary competent personnel under the supervision of a medical practitioner trained in surgery. Under Article 487, a worker who suffers a work-related injury is entitled to medical attention and hospitalization, if necessary. Even in a situation where the employer is exempt from any liabilities for reasons provided under Article 488, the employer is still bound to provide first aid and to ensure the worker's transport to a medical center or to his home.

4.4.1.c Other Norms

NOMs establish conditions of health, safety and hygiene that must be observed in workplaces. Articles 52 and 56 of the LFMN require that installations and activities be in conformity with established NOMs. Employers must maintain systems of quality control compatible with the applicable standards.

"NOMs on workplace safety and health fall into three major categories: (1) safety standards […]; (2) health standards, addressing chronic or acute risks from factors like noise, light, temperature, poor air quality, toxins, [and] carcinogens […]; and (3) structural standards, addressing institutions and procedures such as medical care, joint committees, information management, and hazard reporting."¹⁷

The following standards relate to OSH issues pertinent to Public Communication CAN 2003-1:

NOM-001-STPS-1994 establishes OSH conditions in workplace areas;
NOM-004-STPS-1999 establishes protection systems and safety devices on machinery and equipment;
NOM-005-STPS-1998 establishes conditions for the handling of toxic substances in workplaces;
NOM-010-STPS-1999 establishes maximum permissible levels of exposure to chemical substances and requires employers to maintain up-to-date records of concentration levels of chemical substances and show them to the competent authorities. Employers are also responsible for informing and training workers, and for posting appropriate safety notices in visible locations;
NOM-011-STPS-2001 establishes maximum permissible levels of noise and exposure times per day;
NOM-015-STPS-2001 establishes preventive measures to protect workers from high thermal conditions as well as the determination of the fatigue index and exposure limits;
NOM-017-STPS-2001 establishes the requirements for the selection and use of personal protective equipment. It imposes on employers the obligation to conduct appropriate risks analyses and to provide them to labour authorities on request;
NOM-018-STPS-2000 establishes a system for the identification and communication of risks related to chemical substances;
NOM-019-STPS-1993 establishes guidelines for the composition and operation of OSH committees that must be set up in all enterprises or establishments, in accordance with the LFT; and
NOM-116-STPS-1994 establishes the characteristics and minimum requirements that must be met by air purifying respirators against harmful particles present in the work environment.

The RFSHMAT also contains a series of employer obligations and responsibilities related specifically to these workplaces conditions. Article 17 obliges employers to: keep contaminants within permissible limits in the workplace environment; develop and circulate safety data sheets for dangerous materials and chemical substances; provide workers with adequate protective equipment; and provide medical examinations to workers exposed to contaminating chemical substances. Employers are also required to adopt measures to prevent accidents occurring while using machinery and equipment as well as occupational illnesses resulting from exposure to chemical agents, and to inform and train workers about OSH risks and prevention measures.

Articles 99 and 100 of the RFSHMAT stipulate that in workplaces where conditions or contaminants may affect the health of workers, adequate ventilation must be in place. Article 101 relates to the selection of personal protective equipment. Articles 103 to 107 state that employers must provide, at the worksite, sinks, toilets, showers, change rooms and lockers, a clean place for the consumption of food as well as potable water. Sanitary facilities for the use of workers must always be kept in hygienic conditions and be available for use. Employers must establish a program for the tidiness and the cleanliness of the premises. Housekeeping of the plant must be done at least once after every work shift. Violations of the RFSHMAT are subject to fines based on the general minimum daily wage in effect in the economic area where the workplace is located, fines that are doubled if violations have not been corrected within the allotted time. More pertinent to the allegations about the cafeteria at Matamoros Garment, article 8 states that all areas of the workplace must be kept clean and, more specifically, floors must have a system preventing stagnation of fluids.

Finally, Article 132 of the LFT requires that employers behave towards the workers with proper consideration and abstain from ill treatment. This would relate to the allegations of verbal and physical abuse.

4.4.2 Enforcement Procedures

"Compliance policy [in Mexico] features three approaches: government inspection; private sector verification units which may inspect and report on compliance; and joint committees charged with monitoring compliance, assisting inspectors, and improving risk prevention."¹⁸ The role and functions of verification units are not relevant to this public communication.

ILO Convention 150 stipulates that the competent bodies within the labour administration system must give notice of deficiencies in working conditions, propose corrective measures, and "make technical advice available". The Convention also specifies that labour administration staff must be suitably qualified and independent of improper external influences as well as possess the necessary means to perform their duties.

ILO Convention 155 requires that an adequate and appropriate system of inspection accompanied by adequate penalties for violations, and measures to provide guidance to employers and workers should be established in order to ensure compliance with a country's national policy on OSH.

Articles 511 and 540 to 548 of the LFT stipulate the functions, duties, obligations and liabilities of labour inspectors. They have a compliance monitoring, reporting, and information disseminating role. That is, they must ensure compliance with labour standards, including those concerning OSH, through periodic inspections of workplaces and of relevant company documents. They must report any violations of labour standards and require that corrective measures be put in place. Finally, they are responsible for informing workers and management about relevant OSH laws and regulations.

In performing these duties, labour inspectors are obligated to conduct periodic inspections of employer premises, to conduct special inspections when asked by their superiors or whenever a complaint is received regarding the non-observance of labour standards, and to file a report after each inspection, a copy of which must be provided to the interested parties. They also have an obligation to report to the proper authorities any failure to observe or violations of the labour norms in an establishment or enterprise.

Labour inspectors are subject to liability (up to dismissal) if they commit prohibited actions such as failing to carry out periodic or special inspections, including false information in their reports, and accepting direct or indirect bribes.

Article 512.D of the LFT stipulates that whenever corrective measures ordered by labour inspectors are not implemented by an employer, the STPS will impose a fine. Fines are increased if the measures are not implemented before the end of a specified deadline. If problems persist, the STPS, taking into account the gravity of the risk and the extent of the required modifications, may order a partial or complete closure of the workplace until the violation has been eliminated.

JCAs can hear workplace disputes involving OSH and worker compensation payments, and the federal courts hear enforcement appeals and constitutional challenges (amparo).

4.4.2.a Inspection Procedures

The General Regulation for Inspection and Penalties for Violations of Labour Legislation (RGIASVLL – Reglamento general para la inspección y applicación de sanciones por violaciones a la legislación laboral), which came into effect in August 1998, establishes rules of workplace inspections and the imposition of penalties.

The RGIASVLL governs inspections and penalties regarding workplace safety and health throughout Mexico, whether enforcement lies with federal or state authorities. The RGIASVLL outlines the obligations of inspectors, which include: monitoring the application of labour provisions; issuing and monitoring compliance orders; proposing complete or partial workplace closure; and forwarding appropriate reports to the public prosecutor, where appropriate. In addition to ensuring basic regulatory compliance, inspectors are responsible to monitor legally required workplace permits along with employee ability certificates, and ensuring that OSH committees are established in each workplace and function properly. They are also charged with providing workers and employers with safety and health advice.¹⁹

Workplaces are subject to three types of regular inspection. Initial inspections occur when a workplace opens, expands or is modified. Periodic inspections are normally performed once a year. The frequency of periodic inspections can vary depending on the results of previous inspections and taking into account the industrial sector, the nature of the activities, the degree of risk, the number of workers, and the geographic location. Verification inspections are performed to monitor compliance with OSH-related measures or orders previously issued by labour authorities.²⁰

Articles 17-20, 23 and 26 of the RGIASVLL establish guidelines on how to conduct an inspection. For instance, the inspector must provide the employer with a written inspection order specifying the kind of inspection to be conducted and the list of documents to be presented to the inspector. Notice must be given at least 24 hours in advance along with a statement of employer rights and obligations. However, the practice has usually been to give such notice at least three days in advance. Representatives of both employer and employees should be present.²¹ Employees have the right to be present and speak freely during inspections. Complete collaboration from the employer, the workers and the OSH committee, as well as access to facilities and documents must be provided. The inspector is authorized to interview workers and the employer (or its representatives) separately to avoid the possible influence of one party on the other, if necessary.

If, during an OSH-related inspection, an inspector finds deficiencies that involve an imminent danger to the safety of the workplace or its workers or their health, the inspector must order corrective measures to be implemented immediately and, if necessary, recommend the partial or complete closure of the workplace to the competent STPS authorities.

Following each inspection, inspectors must submit reports and have them signed by the various parties. Employees are entitled to obtain copies of inspection results.

Inspections and inspection policy are handled by the DGIFT, a special STPS bureau. It is also responsible for the training and certification of inspectors. Inspectors must abide by specified standards of diligence and integrity, on risk of penalty. Specifically, they cannot inspect workplaces in which they have a financial or personal interest, whether direct or indirect, nor receive gifts or donations from employers, workers or their representatives.²² Article 26 of the RGIASVLL stipulates that the work of inspectors will be supervised by competent labour authorities through verification visits of inspected workplaces and verification of facts noted in inspection reports. Randomly selected inspection reports will also be verified by an internal control unit.

Penalty recommendations are forwarded from inspection authorities to another special STPS bureau, the General Division of Legal Affairs (DGAJ – Dirección general de asuntos juridicos). The DGAS sets penalties, even where the inspection authority is non federal.²³ Mexico rarely imposes first-violation penalties. Failure to respect the provisions of LFMN can be sanctioned by fines or temporary or permanent closure of the production facility. These fines are higher than those related to violations of RFSHMAT. Penalties normally are imposed only for failure to prevent "imminent dangers or failure to abate problems previously highlighted by inspectors or OSH committees. Sanctions range from fines to partial or full closing of a facility. Size of fines legally turns on gravity of the offense, on intentional or repeated nature of violations, and on company['s] financial capacity […]. Administrative fines do not preclude criminal penalties."²⁴

"Workplaces are also subject to special inspections, which can be ordered at any time if authorities have knowledge of [possible] violations, accidents, mishaps or imminent dangers, or if they detect irregularities, falsehood or dishonesty in employer acts, reports or documentation."²⁵ Under Article 1003 of the LFT, any worker, employer or trade union may report violations of labour norms, including OSH-related violations, to the authorities. "Workers may complain individually or through a union about unsafe work, inaccurate reports, and joint committee failures to identify hazards or secure abatements."²⁶

Authorities must review complaints along with incident reports and other information to determine whether special inspections are warranted, depending on the seriousness of the hazard, the employer's compliance history and the size of the firm.²⁷ The same obligations and procedures as for the regular inspections apply except that these inspections are unannounced.

4.4.2.b Health and Safety Committees

Under Article 509 of the LFT, OSH committees consisting of an equal number of workers' and employer's representatives must be established where it is "found necessary". Joint committees are actually found mainly in workplaces with more than ten workers. Their purposes are to investigate the causes of accidents and diseases, to propose preventive measures and enable compliance therewith. They are also charged with assisting government inspections and preparing reports, performing follow-up inspections, and reporting on abatement failures. Employees have the right to have their OSH committee inform them of the workplace safety and health record. In addition, collective labour agreements may confer additional duties and decision-making power to such committees.²⁸

Additional relevant norms can be found in the regulations. One of the technical standards established under the LFMN relates to the constitution and functioning of workplace OSH committees. NOM-019-STPS-1993 establishes guidelines for the composition and operation of OSH committees. Article 126 of the RFSHMAT, the federal Regulation on OSH in the workplace, specifies the tasks to be performed by OSH committees, including: investigating OSH accidents and illnesses; monitoring the application of the RFHSMAT provisions and applicable OSH-related standards; reporting any violations; and proposing preventive measures to the employer. Article 125 determines the range of the fine to be imposed if an employer fails to establish an OSH committee within 30 days of the beginning of operations at a plant.

4.4.2.c Information Systems and Experience Rating

Other components of the compliance system in Mexico are information systems and experience-related workers' compensation premiums.

"Employers must give notice of accidents and work-related illnesses to STPS, to the pertinent inspection authority, to IMSS and to the federal CAB [JCA]."²⁹ These institutions collect data from employers. "IMSS analyzes statistics and uses them to develop prevention strategies for reducing accidents and illnesses."³⁰

"Information is [also] used for experience-rating of workers' compensation premiums, for targeting compliance inspections, and for identifying workplaces needing hazard reduction assistance."³¹ The premiums paid by employers to IMSS "vary with job risk and with number and seriousness of prior accidents and illnesses. They are adjusted to reward good safety and health performance and to punish poor performance".³² The rate-setting policy in Mexico "places less emphasis on sector risk classifications, [and] more on a particular firm's individual performance".³³ Firms may move among fee categories, depending on risk factors. Emphasis on the employer's record enhances performance incentives, but may encourage firms not to report accidents and illnesses, particularly minor ones.³⁴

4.5 Due Process

4.5.1 Procedural Protections

Article 14 of the Constitution provides a general guarantee of due process of law in the legal system. Due process requires that the parties be properly notified, represented and heard by a tribunal and that the proceedings be fair, unbiased and unaffected by coercion, intimidation and fraud. In addition, Titles 14 and 15 of the LFT contain extensive provisions that apply due process guarantees in proceedings before the JCAs.

Article 685 of the LFT provides for key elements of due process guarantees, which require that JCA labour proceedings be: open to the public; free of charge (that is no filing fees or other procedural costs); immediate, in the sense that the members of the tribunal must be in personal contact with the parties; expeditious; and predominantly oral and short. Proceedings must also be "conducted with a maximum of economy, concentration and simplicity".

Article 692 indicates that parties have the right to be represented by an attorney during JCA proceedings but that they may also appear in person. At the outset of proceedings, a JCA seeks to settle through conciliation the cases that come before them. If a settlement is not reached, the case moves to the hearing stage where the JCA receives the evidence offered by both parties and hears their arguments

"Mexican labour law assumes that employers have inherent advantage over workers in the employment relationship and in the intricacies of legal proceedings."³⁵ Therefore, the labour law is expressly protective of workers' rights. For example, the burden of proof always rests with the employer.

With respect to ordinary JLCA proceedings such as reinstatement hearings, Article 879 of the LFT provides that a hearing "shall be held, even when the parties do not attend. […] If the defendant does not attend, the petition shall be considered as affirmatively confirmed."

4.5.2 Independence and Impartiality of Decision Maker

As provided by Article 605 of the LFT, as it relates to Article 623, local conciliation and arbitration boards (JLCAs), which are established on a tripartite basis, are made up of a chairperson, one representative from workers and one from employers. Chairpersons are government representatives appointed every six years by the State Governor. Workers' and employers' representatives are designated according to branches of industrial or other economic sectors.

Pursuant to Article 648 of the LFT, workers' and employers' representatives must be elected at conventions to be organized and held every six years, in accordance with the provisions of Title XIII, Chapter 1 of the LFT. Article 652 of the LFT stipulates the procedures by which workers' representatives are elected. Said article provides that duly registered unions and unaffiliated workers rendering services to an employer are entitled to appoint delegates to the conventions. Notice is given of an open convention to elect representatives and the convention goes forward whatever the number of worker delegates present from a particular industrial sector may be. Representatives are elected by a majority of the votes cast.

There is provision in Article 652 of the LFT for worker delegates who are not affiliated with trade unions in workplaces where there is no registered trade union to attend such conventions. However, where there is a registered trade union representing the employees, the delegates must be union members. Therefore, if there is already a union in place, it is not possible for a group of workers to represent themselves at such conventions.

The JLCA of Puebla is comprised of six Special Boards that sit in the State capital and four Permanent JLCs headquartered in the municipalities of Atlixco, Huauchinango, Tehuacán and Teziutlán. On December 5, 2000, workers and employers held their respective conventions to elect representatives. Accredited delegates representing their respective organizations participated in the election of workers' and employers' representatives. Representatives and alternates were elected for the 2001-2006 term.

The impartiality of JCAs in matters of union registration and other actions has been the subject of extensive debate in Mexico. Article 841 of the LFT states that JCAs are required to make their awards in good faith, on the basis of well-informed truth and an appraisal of the facts made in good conscience. "Article 707 of the FLL [LFT] sets out the grounds upon which CAB [JCA] members may be legally disqualified from conciliating or hearing a particular case. These grounds include: a direct personal interest in the case; a relationship of economic dependence on one of the parties; a family, debtor/creditor, heir or legatee or business partnership relationship with a party. A CAB member may not conciliate or hear a case in which he or she has acted as an attorney for a party, or upon which he or she has issued an opinion. There is some disagreement among Mexican jurists over whether a CAB member who is assigned to adjudicate a case and who is a member of a union, union confederation, or employers' organization that is a party to that case [or whose interests are directly affected by that case] can be disqualified from adjudicating the case on that ground."³⁶

"Articles 708 to 711 [of the LFT] set out disqualification procedures. Article 708 requires any representative of the government, employers or workers to withdraw from a case upon finding himself or herself involved in one of the circumstances described in Article 707. Under Article 710, a party to a case who believes that a CAB [JCA] member should be disqualified from hearing that case may file an application to have that member disqualified. In the case of worker or employer representatives, […] the president of the relevant CAB decides the application. Where the application seeks to disqualify the president of the CAB, it is brought to […] the governor of the state or chief of the government of the Federal District, as the case may be, where a local CAB is concerned. Workers' or employers' representatives are replaced by their respective alternates on the CAB."³⁷