5. Analysis and Findings

Review of Public Communication CAN 2003 – 1

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Under the NAALC, governments accept obligations to maintain high labour standards and to fairly, effectively and transparently enforce their labour laws. Accordingly, these conclusions focus on the overall pattern of actions by Mexican authorities in administering and enforcing Mexican labour law. Moreover, this report seeks to understand the requirements of Mexican law for the purpose of determining whether NAALC obligations were met; it does not attempt to adjudicate matters arising between Mexican workers and employers.

5.1  Freedom of Association

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.

5.1.1  Union Registration Procedures

In Mexico, the registration of a union is a first and key step enabling workers to create an organization of their choosing. Without registration, a union lacks the capacity to engage in most legal activities on behalf of its members. In particular, registration is required before a union can conclude and enforce a collective contract with an employer.

Mexican labour legislation and the international treaties to which Mexico is a party reinforce each other in requiring that union registration procedures operate in a timely and predictable manner. Under Mexican law, union registration is a purely administrative procedure. Article 366 of the LFT lists in precise terms the only reasons for which a union may be denied registration. It appears to exclude any discretion to deny registration for other reasons. The LFT also 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. This is consistent with ILO Convention 87, to which Mexico is a party. The Freedom of Association Committee of the International Labour Organization 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.

Timely and predictable registration procedures are also of particular importance within the Mexican system of legal protections. By limiting the discretion of the registering authority, they underpin the principle, well-established in Mexican law, of non-interference by the state in internal union affairs. They also provide an important means through which workers can initiate a change of union representative. This is a key check and balance within a system that, in accordance with the principle of non-interference, allows unions to be formed, registered and to negotiate collective contracts without an election or without presenting other evidence to a public authority that they have the support of a majority of the workers that they seek to represent.

Official documents presented to the Canadian NAO in the context of this public communication raise concerns that the JLCA sought to exercise a discretion to deny registration inconsistent with the constraints imposed upon it by Mexican law.

In the light of Article 366 of the LFT and ILO Convention 87, the following observations concerning the grounds for decision denying registration to SUITTAR and SITEMAG are in order:

With respect to the SUITTAR decision (see section 3.1.1.b):

1. Article 366 simply requires that documents be filed in duplicate, not that two copies in addition to originals be filed.
2. The LFT does not require that the formation of the union and the election of its executive committee take place in separate assemblies or that they be recorded in separate documents, and Article 366 does not authorize authorities to deny registration on these grounds.
3. While Article 366 may empower the registering authority to review the contents of the by-laws of a union seeking registration, it could only do so for the purpose of verifying that the contents listed in Article 371 are present, and not to make judgments about the clarity or adequacy of by-law provisions. A review by the Canadian NAO of SUITTAR's by-laws confirms that they do contain provisions governing the administration and disposition of goods owned by the union, as well as disciplinary actions that may be applied to union members.
4. Article 366 does not empower a registering authority to require that, in the case of an enterprise level union such as SUITTAR, an applicant for registration establish that each of its officers is an employee of the enterprise in question. While this may be a legal requirement to hold union office, there is no legal basis upon which failure to comply with it may result in denying registration.

With respect to the SITEMAG decision (see section 3.1.1.a):

1. Article 366 does not require that a petitioner for registration prove that all workers who sign an assembly list are over 14 years of age. To be registered, a union simply requires 20 persons in active employment. If an employer has hired a worker, the ordinary inference to be drawn is that this person is of legal age of employment. If the authorities have reason to suspect that the union has not presented a list of 20 workers validly engaged in active employment, it may enquire into the matter and seek further information from the applicant. However, requiring that the applicant prove that all of those on its union assembly list are above the age of 14 as a condition for registration amounts to imposing a requirement of proof not found in Article 366.
2. The fact that one worker whose name appeared on the attendance list submitted by the petitioners later appeared before the JCLA and stated that he had not signed the list could not provide grounds to deny registration, since there remained a sufficient number of workers who had signed the list.
3. Determining that an applicant for registration has not shown 20 workers in active service by ruling that as of the date of the registration decision the enterprise in question had ceased operations, and thus there could not be 20 workers in active service, is clearly contrary to the rules for making such calculations set out in Article 364.

In the case of the SUITTAR petition, three of the four grounds cited by the JLCA for denying the petition have no apparent basis in Article 366 of the LFT. The fourth ground either rests on an apparent oversight in reviewing the documents submitted by the applicants for registration, since the key elements said by the JLCA to be missing from the union's constitution appear to have been included in other parts of the document not referred to by the JLCA in its decision, or is without basis in Article 366 as it would constitute a judgment about the adequacy of the union's by-laws rather than a determination of whether they contain the items required by law.

In the case of the SITEMAG petition, again three of the four grounds for decision were without any apparent basis in Article 366. The fourth ground resulted from a fairly obvious typographical error and other minor technical differences between copies of documents that could easily have been corrected. While the JCLA may not be legally obligated in every case to draw such 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. Instead the JLCA appears to have taken a highly technical approach that inevitably had the opposite result.

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 this delay was available in the course of this review. 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.

It should not generally be necessary for workers to use appeal procedures when seeking to register a union. Moreover, such appeal processes may often be unable to fully remedy a legally unjustified decision to deny registration simply because the time required to complete such processes will cause union organizing efforts to stall while the union waits for legal authority to act on workers' behalf.

As noted above, NAALC procedures are not designed to substitute for national appeal procedures. It is 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 submitters 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.

Nonetheless, the overall 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)). It should be noted that similar concerns with respect to registration procedures were identified in the report of the US NAO on Public Communication US 94-03, and in the report of the Worker Rights Consortium on the registration application by the Sindicato Independiente de los Trabajadores de la Empresa Kukdong Internacional de México (SITEKIM) in June 2001. This strongly indicates that the problems faced by independent unions with regard to the administration of union registration procedures in Mexico continue to be unresolved.

5.1.2  Impartiality

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.

The LFT allows a party to a proceeding to challenge the participation of a JCLA member on the basis of bias or conflict of interest. It appears that the workers in this case did not avail themselves of this right. In any case, it is not clear whether a JLCA member who is a member of a union or union confederation the interests of which are opposed to those of the applicant can be disqualified by virtue of that affiliation. Nor is it clear that the disqualification rules of the LFT apply to administrative processes such as union registration. Further, if the conflict of interest provisions of the LFT do apply, it is not clear that they can provide an adequate remedy. When a JLCA worker representative is disqualified from participating in a proceeding, an alternate is selected from among its other worker representatives. However, the majority rule system for electing worker representatives appears likely to ensure that the list of alternates will often be comprised of workers affiliated with established union federations or confederations.

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. Similar concerns were raised in the reports on Public Communications US 97-03 and US 99-01.

5.1.3  Protections against Interference

Protections against interference are obviously key measures in promoting compliance with and effectively enforcing rights to associate freely and organize a union.

The Public Communication alleges numerous instances in which employers or competing established trade unions sought to intimidate workers seeking to organize new unions in the Matamoros Garment and Tarrant México facilities. It also alleges numerous instances in which workers were coerced by employer representatives into settling claims that they had been wrongfully dismissed because of their union activities, often for amounts of severance pay less than those prescribed by law.

Mexican law contains prohibitions against many forms of intimidation and coercion. These prohibitions can be enforced by filing a complaint with the JLCA. Yet the 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, unless some cogent explanation can be provided for why those mechanisms were effectively unavailable.

The reluctance of workers to seek the assistance of the authorities 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. Indeed, they appear in many cases to have preferred political protest and lobbying the authorities over using legal complaint procedures. Workers repeatedly told the Canadian NAO that the main reason for not seeking legal remedies from the authorities was that they had no confidence in the JLCA because it had, unfairly in their view, denied their petition for registration. This is understandable given the conclusions reached above with regards to the registration process in the SITEMAG and SUITTAR cases. However, in both cases the registration decision came relatively late in the sequence of events.

Workers at both Tarrant México and Matamoros Garment also explained that they were disheartened by the passivity of the authorities in various instances, for example when the JLCA allegedly supervised back wage payments made at below minimum wage rates. Nonetheless, 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.

Nonetheless, four concerns should be noted.

First, the JLCA appears to have witnessed, at Matamoros Garment, the distribution of cheques to workers being laid off for economic reasons, and to have been aware of the regular and massive layoffs at Tarrant México. Yet the information available suggests that appropriate layoff procedures, including the requirement that layoffs take place in reverse seniority order, appear not to have been followed. The seniority provisions of the LFT are an important safeguard against interference in union organizing rights, since they effectively prohibit anti-union considerations from influencing the order of layoffs. Moreover, as noted above, this apparent inaction on the part of the JLCA appears to have affected the confidence of workers in its willingness to enforce other worker protections found in Mexican law.

Second, as we noted in the report on Public Communication CAN 98-1, it is not clear whether provisions of the LFT concerning the protection of workers from coercion and intimidation on the part of a union are sufficient to ensure that Mexico's obligations under NAALC Article 2 are met. The LFT protects workers from coercion on the part of an employer, but protection from coercion on the part of a union is not as well delineated. In the absence of labour law protection it would appear that the only appropriate avenue to seek redress for such intimidation or coercion would be the criminal justice system and the intervention of police authorities.

Third, where workers seek a remedy for unjust dismissal, including anti-union dismissal, time is of the essence. Workers told the NAO that once they were laid off, they often had no source of income. The more time passed the more they needed the money that opting for severance pay instead of reinstatement would provide them, and the more vulnerable they became to the risk that they would not receive any severance pay if they persisted in their claims. Yet the JLCA appears to have been willing to grant adjournments in many cases without inquiring into the reasons for such adjournments or into whether workers were coming under undue pressure to adjourn or settle their cases on disadvantageous terms. The pertinent NAALC provisions related to the effective and timely enforcement of labour legislation through appropriate government action contemplate that authorities like the JLCA are under a positive obligation to make sure legal recourses are timely enough to be effective. A more proactive approach on the part of the JLCA would likely have made an important contribution effectively enforcing protections that are key to countering anti-union dismissals, and to building the confidence of workers in the JLCA itself.

Finally, the Canadian NAO has no evidence that the Puebla State Attorney General's Office took any action on the harassment complaint filed with it by SITEMAG supporters on February 25, 2003.

5.1.4  Information Available to Workers Represented by a Union

As noted above, in accordance with the principle of non-interference by the state in internal union affairs, Mexican labour law allows unions to be formed, registered and to negotiate collective contracts without an election or presenting other evidence to a public authority that they have the support of a majority of the workers that they seek to represent. 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, which is protected by Article 358 of the LFT.

At both Matamoros Garment and Tarrant México there appears to have been confusion among workers about whether there was an established union in the plant and the identity of that union. Workers also said that they were unable to obtain a copy of their collective agreement from the union that had negotiated it, despite having requested it.

There appears to be no legal obligations on unions to provide workers with a copy of a collective contract that covers them. Under Article 390 of the LFT, unions are required to file with the relevant JCA a copy of any collective contract to which they are party. It is unclear however whether workers can obtain a copy of the collective contract that governs their terms and conditions of employment by requesting it from the JCA. 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. Similar concerns were raised in the reports on Public Communications US 94-03 and US 99-01.

5.2  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. 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. While workers explained that they lacked confidence in the willingness of authorities to enforce labour laws, it should be noted that in the case of OSH, the enforcement authority is not the Puebla JLCA, with which they had already interacted, but rather the federal Secretaría del Trabajo y Previsión Social (STPS).

As noted above, there is some onus upon workers to make use of available complaint procedures. In the case of Matamoros Garment, workers did not bring their concerns about occupational safety and health 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. At that time, according to the submitters, workers complained informally about working conditions to a representative of the JLCA, and the JLCA representative responded that such issues were of less concern than getting the employer to pay back wages owing and returning to work. Such a response would be troubling as it appears to prejudge the seriousness of workers' occupational safety and health concerns without investigating them. However, the workers did not have to accept it. They could have filed a formal complaint either with the JCLA or with the STPS. In the case of Tarrant México, workers brought their occupational safety and health concerns to the attention of the authorities only when they sought the assistance of the 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 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. It is appropriate to ask what steps STPS inspectors may have taken to address any health and safety hazards in the two plants. The submitters have alleged a series of matters that an inspector might have been expected to notice and deal with on a regular inspection. The information before the Canadian NAO suggests that there was no operating joint OSH committee in either plant. Other occupational safety and health issues might also have merited investigation:  specifically at Matamoros Garment, the alleged:  lack of protective equipment on sewing machines, first aid supplies, medical services and clean drinking water, and unsanitary rest rooms and cafeteria; in the case of the Tarrant México plant, the alleged:  lack of appropriate ventilation, insufficient drinking water, insufficient and unsanitary washrooms, lack of protective gloves and soap to protect against the hazards of chemical dyes, and lack of medical services on site. 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 has yet to receive any information on whether inspectors identified or sought to address such concerns in the course of their inspections or inspection follow-up processes. 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.

5.3  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 the one instance discussed below, 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.

In the case of Matamoros Garment, workers did not bring their concerns about minimum standards 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. At that time, the JLCA took action to resolve the issue of unpaid wages. However, the submitters have argued that the JLCA failed to ensure that back wage payments complied with minimum wage norms even when such concerns were brought to its attention. The information before the Canadian NAO suggests that the response of the JLCA to these concerns was passive and discouraging to the workers. Further, as noted above, the workers' allegations that the JLCA representative appeared unconcerned about issues beyond non-payment of wages are troubling. On the other hand, if workers believed that the JLCA's response was inadequate on minimum wage or other issues, they could have pursued the matter by filing a formal complaint with the appropriate inspectors' office or with the JLCA itself. The main concern from the point of view of NAALC obligations is that the informal interactions of the JLCA with workers, combined with other factors discussed above, may be discouraging workers from using appropriate enforcement procedures.

Matamoros Garment workers did file a complaint of theft of wages with the State of Puebla Attorney General's office on March 24, 2003. The information before the Canadian NAO shows that at least some of those who filed this complaint had in fact received their wages by the end of the day on March 24, 2003, and workers at the Canadian NAO public meeting indicated that because wages were paid at that time no further action was expected with respect to that complaint.

In the case of Tarrant México, workers brought their concerns about minimum standards violations to the attention of the authorities only when they sought the assistance of the JLC to obtain a negotiated settlement with the employer. As noted above, 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 agreed to the 16-point settlement of their demands.

On the other hand, as also noted above, 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 shut down of each plant. In the case of Matamoros Garment, the JLCA must have been fully aware that economically motivated layoffs were taking place, since it supervised the distribution of the last pay cheques to workers on March 24, 2003. There appears to have been evidence at the outset that the closure was permanent, which would entitle 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. Such inspections might reasonably be expected to detect problems like failures to make timely wage payments or to pay the minimum wage. 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.

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