OFFICE FOR INTER-AMERICAN LABOUR COOPERATION

 LABOUR BRANCH

HUMAN RESOURCES DEVELOPMENT CANADA

 

REVIEW OF PUBLIC COMMUNICATION CAN 98-1

PART 1

 

For further information, contact: the Office for Inter-American Labour Cooperation, Labour Branch, Human Resources Development Canada, Ottawa, Ontario, K1A 0J2.
Tel.: (819) 953-8860 - Fax: (819) 953-8494
E-mail: May.Morpaw@hrdc-drhc.gc.ca
Internet Site: http://labour.hrdc-drhc.gc.ca/doc/nafta/eng

This document is made available on the Internet, via the LABORIS web site (http://laboris.uqam.ca), by the firm Melançon, Marceau, Grenier & Sciortino

 

Table of Contents

 

Executive Summary

List of Acronyms

Preface

1. Report on Public Communication CAN 98-1

2. The North American Agreement on Labour Cooperation (NAALC)

2.1 Overview

2.2 Objectives and Obligations

2.3 Review Process

3. Background on Freedom of Association Issues

3.1 Information from the Submitters

3.1.1 Issues

3.1.2 Summary of Events as Presented by Submitters

3.2 Information from Mexican NAO

3.3 Information from the Company

3.2.1 Events Surrounding the Recuento

4. Mexican Labour Law

4.1 Overview

4.1.1 Political Constitution of the United Mexican States

4.1.2 Ley Federal del Trabajo (LFT)

4.1.3 Judicial System

4.1.4 International Treaty Obligations

4.2 Freedom of Association and the Right to Organize

4.2.1 Protection from Coercion

4.2.2 JFCA Composition and Procedures

4.2.2.1 Potential Bias and Conflict of Interest

4.2.2.2 Authority to Postpone or Suspend Recuentos

4.2.2.3 Due Process

4.2.2.4 Procedural Time Limits

4.2.3 Enforcement of JFCA Decisions

4.2.4 Election Procedures

4.2.5 Prohibition of Discriminatory Dismissals

5. Analysis and Conclusions

5.1 Events Before the Recuento

5.2 Events During the Recuento

5.3 Events After the Recuento

6. Recommendations

Annex 1: Canadian NAO Guidelines for public communications

Annex 2: List of submitters

Annex 3: Action requested by submitters

Annex 4: Just cause for termination of employment in Mexican labour law

 

 

EXECUTIVE SUMMARY

 

Background

 

Public Communication CAN 98-1 is the first submission received by the Canadian National Administrative Office (NAO) established under the North American Agreement on Labour Cooperation (NAALC).

 

This Communication was received from the Canadian Office of the United Steelworkers of America in concert with 47 other labour and non-governmental organizations from Canada, the United States and Mexico on April 6, 1998. It was accepted for review on June 4, 1998. It raises concerns related to two of the eleven labour principles set out in the Agreement: freedom of association and protection of the right to organize as well as prevention of occupational injuries and illnesses, at an automotive parts plant near Mexico City.

 

This report constitutes the first part of the review and deals specifically with the freedom of association issues raised in the Communication. The second part will be released in early 1999 and will focus on the occupational injuries and illnesses aspects.

 

The NAO has conducted the review with a view to furthering the objectives of the NAALC and gathered data from a wide range of sources to better understand and respond to the issues raised. The NAO received information from the submitters and the company and engaged in Cooperative Consultations with Mexican labour authorities.

 

The Sindicato Nacional de Trabajadores de la Industria Automotriz, Similares y Conexos de la República Mexicana (SNTIASCRM) , an affiliate (section 15) of the Confederación de Trabajadores Mexicanos (CTM) , represents workers at the plant and holds the collective agreement. Around June 1996, the Sindicato de Trabajadores de la Industria Metálica, Acero, Hierro, Conexos y Similares (STIMAHCS) , a trade union affiliated with the Frente Auténtico del Trabajo (FAT) , began a union organizing drive. The main issues of concern to the workers included better protection from contamination, unhealthy and unsafe working conditions, low wages, abusive supervisors, sexual harassment, and the lack of responsiveness on the part of the SNTIASCRM.

 

A representation election (recuento), originally scheduled for August 28, 1997, was postponed to September 9, 1997, by Special Board No.15 of the Junta Federal de Conciliación y Arbitraje (JFCA). The JFCA failed to inform STIMAHCS and its supporters directly of the postponement. The submitters allege that, in the months preceding the recuento, the company and SNTIASCRM intimidated workers and that a number of them were dismissed for union activities. The company indicated that STIMAHCS supporters were not singled out and intimidated prior to the recuento and that the dismissals that did occur were performance-related except for those workers who were discharged following the application of the exclusion clause.

 

During the recuento, workers voted orally in front of JFCA agents, management and union representatives. The information received paints a picture of a disorderly proceeding under the auspices of the JFCA. For example, workers eligible to vote were denied access to the designated voting area, an atmosphere of tension prevailed and electioneering took place inside the company premises (where the vote was held) and outside of the plant walls.

 

The submitters allege that, after the recuento, the JFCA did not allow STIMAHCS representatives full opportunity to submit evidence in support of their claim that major irregularities had taken place. They believe that the presence of a CTM representative on the JFCA creates a bias in its actions.

 

STIMAHCS filed an amparo (appeal) with the Federal District Court arguing the JFCA had violated the workers' constitutional right to organize. It was judged premature since the JFCA had not yet released its final decision. The final decision, dated December 4, 1997, was released on February 4, 1998. It stated that SNTIASCRM still held the collective bargaining agreement. The submitters argue that the two-month delay in releasing the report was detrimental to STIMAHCS, particularly in the context of the amparo. The independent union filed a second amparo on February 26, 1998, which led to the Court ordering a new hearing into the allegations of irregularities during the recuento. While the hearing took place on August 13, 1998, the decision is pending.

 

Some of the dismissed workers filed for reinstatement with the JFCA which ordered the company to rehire them. However, they were fired again following the application of the exclusion clause (Clause 6 in the collective bargaining agreement). These workers were terminated because they no longer belonged to SNTIASCRM but it appears that proper expulsion procedures were not followed.

 

During consultations, when the amparo proceedings were not completed, the Mexican NAO did not comment on the specific events that took place at the plant except with respect to the status of reinstatement claims. However, Mexican officials provided additional information and clarification on Mexican labour law that were essential for the review.

 

Summary of Analysis and Conclusions

 

Freedom of association is a constitutional right in Mexico which is reinforced by federal law 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.

 

The information received by the NAO suggests that Mexico did not conform to the following obligations of the NAALC:

 

- Article 2, which recognizes the right of each country to establish its own domestic labour standards but also commits each country to provide for high labour standards, by failing to ensure that Mexican labour laws and regulations protect workers involved in union organizing campaigns and the integrity of the workers' vote;

 

- Article 3, by failing to promote compliance with and effectively enforce Mexican labour laws concerning the expulsion of union members and the provision of a safe voting environment;

 

- Articles 4 and 5, by failing to ensure that the members of the Labour Board are not in a conflict of interest and that procedural protection is afforded to parties involved in Board proceedings.

 

Recommendations

 

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

 

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

 

a) how the requirement of the Agreement that labour boards (Juntas de Conciliación y Arbitraje in Mexico) be impartial and independent and not have any substantial interest in the outcome of decisions is respected during the selection of representatives who serve on these boards;

 

b) the extent of effective protection of procedural interests of parties to labour board (Junta de Conciliación y Arbitraje in Mexico) proceedings;

 

c) how freedom of association protections for workers are enforced a) before and b) during representation elections (recuentos in Mexico);

 

d) how the procedures for representation elections (recuentos in Mexico) protect the integrity and accuracy of the workers' vote;

 

e) the dissemination of information on the content of union by-laws and collective bargaining agreements to union members and other interested parties;

 

f) the enforcement of labour legislation in the case of a failure to adhere to union by-laws governing the expulsion of union members.

 

It is further recommended that the Minister of Labour defer the request for Ministerial Consultations until the second part of the review related to the occupational injuries and illnesses aspects of the Communication is submitted.

 

List of Acronyms

 

CAB: Conciliation and Arbitration Board

CTM: Confederación de Trabajadores Mexicanos

FAT: Frente Auténtico del Trabajo

FCAB: Federal Conciliation and Arbitration Board

FDC: Federal District Court

ICCPR: International Covenant on Civil and Political Rights

JC: Junta de Conciliación

JCA: Junta de Conciliación y Arbitraje

JFCA: Junta Federal de Conciliación y Arbitraje

ILO: International Labour Organization

LFT: Ley Federal del Trabajo

NAALC: North American Agreement on Labour Cooperation

NAFTA: North American Free Trade Agreement

NAO: National Administrative Office

SNTIASCRM: Sindicato Nacional de Trabajadores de la Industria Automotriz, Similares y Conexos de la República Mexicana

STIMAHCS: Sindicato de Trabajadores de la Industria Metálica, Acero, Hierro, Conexos y Similares

STPS: Secretaría del Trabajo y Previsión Social

 

PREFACE

 

The North American Agreement on Labour Cooperation (NAALC) is the first agreement linking a free trade agreement to the effective enforcement of labour standards. In the preamble to the Agreement, the Governments of Canada, Mexico and the United States recall their resolve, as expressed in NAFTA, to improve working conditions and living standards in their respective territories and to protect, enhance and enforce basic workers' rights. These goals are pursued through mechanisms for cooperative activities, intergovernmental consultations, independent evaluations and dispute settlements procedures.

 

Several institutions have been set up to implement the Agreement. The Commission for Labour Cooperation, composed of a Ministerial Council and a Secretariat, is the only North American organization solely devoted to labour issues. Second, the Council, consisting of the Secretary (in Mexico and the United States) and Minister (in Canada) of Labour of the three countries, oversees the implementation of the Agreement and directs the activities of the Secretariat. Third, the Secretariat, located in Dallas, supports the Council. In addition, each government established a National Administrative Office within its labour department as a point of contact and source of information within each country and among the three NAALC partners. Under Article 16(3) of the Agreement, NAOs must provide for the review of public communications.

 

 

1. REPORT ON PUBLIC COMMUNICATION CAN 98-1

 

CAN 98-1 is the first Public Communication received by Canada since the North American Agreement on Labour Cooperation (NAALC) came into effect on January 1, 1994. This public communication raises issues related to the enforcement of labour legislation in Mexico, specifically freedom of association and the prevention of occupational injuries and illnesses, two key labour principles which the NAFTA countries agree to promote through cooperation and the effective enforcement of domestic legislation. Each country has established a National Administrative Office (NAO) which can receive public communications concerning labour matters arising in another country and undertake cooperative consultations with the NAO of the other country to better understand and respond to the issues raised.

 

In this report, the NAO examines the freedom of association issue. A second report on occupational injuries and illnesses will follow in early 1999.

 

This report consists of five sections. First, the North American Agreement on Labour Cooperation, including its objectives and the obligations it imposes on Canada, Mexico and the United States, is summarized. A description of the review process followed by the NAO is included in this chapter. Second, key elements of the information received as part of the review are highlighted. Third, a review of relevant Mexican labour legislation concerning the issues related to freedom of association raised by the Communication is presented in chapter 4. This review is followed by analysis and conclusions regarding the enforcement of Mexican labour legislation and the Mexican government's obligations under the Agreement. The final chapter contains specific recommendations to the Canadian Minister of Labour.

 

The NAO would like to express its appreciation to everyone in the three countries who contributed to this review. The NAO acknowledges the assistance of the Labour Departments of the provinces signatory to the Canadian Intergovernmental Agreement, the Canada and Manitoba Labour Relations Boards, the Justice Department and the Department of Foreign Affairs and International Trade in completing the review.

 

2. THE NORTH AMERICAN AGREEMENT ON LABOUR COOPERATION

 

2.1 OVERVIEW

 

Signed by Canada, Mexico, and the United States in 1993 as a complement to the North American Free Trade Agreement (NAFTA), the NAALC is the first international agreement linking a free trade agreement to the promotion of a specific set of labour principles and the effective enforcement of domestic labour legislation. Under Article 16(3), each NAO is to provide for the submission and receipt of public communications on labour law matters arising in the territory of another NAALC country and is to review such matters in accordance with domestic procedures. Each country has established procedures or guidelines for the review of these public communications. In addition to the review of the public communication, Cooperative Consultations under Article 21 were carried out with Mexico.

 

2.2 OBJECTIVES AND OBLIGATIONS

 

Article 1 of the NAALC lists the objectives which the countries are to promote. Four of these objectives are particularly relevant to Public Communication CAN 98-1. First, Article 1(b) requires the Parties to promote, to the maximum extent possible, a set of eleven labour principles. These principles are:

 

1. Freedom of association and protection of the right to organize;

2. Right to bargain collectively;

3. Right to strike;

4. Prohibition of forced labour;

5. Labour protections for children and young persons;

6. Minimum employment standards;

7. Elimination of employment discrimination;

8. Equal pay for women and men;

9. Prevention of occupational injuries and illnesses;

10. Compensation in cases of occupational injuries and illnesses;

11. Protection of migrant workers.

 

Second, Article 1(d) calls on Parties, among other things, to encourage the exchange of information to enhance the mutually beneficial understanding of laws and institutions governing labour in each Party's territory. Third, Article 1(f) requires Parties to promote compliance with, and effective enforcement of, their respective labour laws. Finally, pursuant to Article 1(g), Parties are to foster transparency in the administration of labour law.

 

Each country is also to respect a series of obligations. For the review of Public Communication CAN 98-1, the relevant obligations are:

 

Article 2: Levels of Protection

"Affirming full respect for each Party's constitution, and recognizing the right of each Party to establish its own domestic labour standards, and to adopt or modify accordingly its labour laws and regulations, each Party shall ensure that its labour laws and regulations provide for high labour standards, consistent with high quality and productivity workplaces, and shall continue to strive to improve those standards in that light."
 

Article 3: Government Enforcement Action

"1. Each Party shall promote compliance with and effectively enforce its labour law through appropriate government action, subject to Article 42 , such as:

(b) monitoring compliance and investigating suspected violations, including through on-site inspections;

(g) initiating, in a timely manner, proceedings to seek appropriate sanctions or remedies for violations of its labour law.

2. Each Party shall ensure that its competent authorities give due consideration in accordance with its law to any request by an employer, employee or their representatives, or other interested person, for an investigation of an alleged violation of the Party's labour law."

 
Article 4: Private Action

"1. Each Party shall ensure that persons with a legally recognized interest under its law in a particular matter have appropriate access to administrative, quasi-judicial, judicial or labour tribunals for the enforcement of the Party's labour law.

2. Each Party's law shall ensure that such persons may have recourse to, as appropriate, procedures by which rights arising under:

(a) its labour law, including in respect of occupational safety and health, employment standards, industrial relations and migrant workers, [...]

can be enforced."

 

Article 5: Procedural Guarantees

"1. Each Party shall ensure that its administrative, quasi-judicial, judicial and labour tribunal proceedings for the enforcement of its labour law are fair, equitable and transparent and, to this end, each Party shall provide that:

(a) such proceedings comply with due process of law;

(c) the parties to such proceedings are entitled to support or defend their respective positions and to present information or evidence; and

(d) such proceedings are not unnecessarily complicated and do not entail unreasonable charges or time limits or unwarranted delays.

2. Each Party shall provide that final decisions on the merits of the case in such proceedings are:

(b) made available without undue delay to the parties to the proceedings and, consistent with its law, to the public; and

(c) based on information or evidence in respect of which the parties were offered the opportunity to be heard.

4. Each Party shall ensure that tribunals that conduct or review such proceedings are impartial and independent and do not have any substantial interest in the outcome of the matter.

5. Each Party shall provide that the parties to administrative, quasi-judicial, judicial or labour tribunal proceedings may seek remedies to ensure the enforcement of their labour rights. Such remedies may include, as appropriate, orders, compliance agreements, fines, penalties, imprisonment, injunctions or emergency workplace closures.

8. For greater certainty, decisions by each Party's administrative, quasi-judicial, judicial or labour tribunals, or pending decisions, as well as related proceedings shall not be subject to revision or reopened under the provisions of this Agreement."

 

2.3 REVIEW PROCESS

 

Under the NAALC, an NAO may request Cooperative Consultations with another NAO in relation to its labour law, its administration or labour market conditions. The process is designed to examine domestic labour legislation and its enforcement and the extent to which a country meets its obligations under the Agreement. It does not contemplate the adjudication of private remedies or determining the appropriateness of actions by private sector organizations.

 

The role of the NAO is to make recommendations to the Minister of Labour who, in turn, decides on whether to engage in Ministerial Consultations (which are part of the Cooperative Consultation and Evaluation process under Part IV of the NAALC) on the issues that were not resolved during the review.

 

The NAO reviewed the Communication with a view to furthering the objectives of the NAALC and gathered data from a wide range of sources to better understand and respond to the issues it raised.

 

The NAO received Public Communication CAN 98-1 on April 6, 1998, and accepted it for review on June 4, 1998. It requested additional information and clarification from the submitters, the company and the Government of Mexico. Questions were sent to the submitters on May 8 and June 30 and to Echlin Inc. on June 26. The NAO forwarded a series of questions to the Mexican NAO on July 2 to clarify and better understand Mexican labour law. The NAO met with the submitters on July 9. Representatives for Echlin Canada and the Ottawa office of the Secretaría de Comercio y Fomento Industrial (SECOFI) attended as observers. On September 9, the NAO Secretary met with the Mexican Secretary and officials from the Junta Federal de Conciliación y Arbitraje (JFCA) as well as with officials from the Secretaría del Trabajo y Previsión Social (STPS) in Mexico City. On September 10, the NAO met with representatives of Dana Canada in Hull, and sent questions to legal counsel for Dana Canada on September 11.

 

The NAO also organized a public meeting on September 14 in Ottawa. The submitters as well as representatives and legal counsel of Echlin Inc. and Dana Corporation responded to this invitation. Although only one public meeting had been planned, the number of interested participants led to focusing on freedom of association at this session and scheduling a second public meeting on occupational safety and health matters on November 5. The NAO also received additional information on freedom of association and occupational safety and health from the company and the submitters after the second public meeting.

 

Throughout the review process, the NAO informed and sought the advice of provinces that have signed the Canadian Intergovernmental Agreement. The review of the Communication was also discussed at the inaugural meeting of the Canadian National Advisory Committee on September 18, 1998.

 

NAO receives Public Communication CAN 98-1: April 6, 1998

NAO sends questions to submitters: May 8, 1998

NAO accepts Communication for review: June 4, 1998

NAO sends questions to Echlin Inc.: June 26, 1998

NAO sends questions to submitters: June 30, 1998

NAO sends questions to Mexican NAO: July 2, 1998

NAO meets submitters. Legal counsel for Echlin Canada and SECOFI attend as observers: July 9, 1998

NAO Secretary meets with Mexican NAO Secretary, JFCA and STPS officials: September 9, 1998

NAO meets with representatives of Dana Canada: September 10, 1998

NAO sends questions to legal counsel for Dana Canada: September 11, 1998

First public meeting (on freedom of association): September 14, 1998

Review of Public Communication CAN 98-1 is discussed at inaugural meeting of Canadian National Advisory Committee: September 18, 1998

Second public meeting (on occupational injuries and illnesses): November 5, 1998

 

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