Analysis of Submissions Nos. 940003 and 940004
Researched by: R. Leticia Cuevas
APPENDIX A:The Collective Labor Agreement
Action: The right of persons to request that the judicial authority decide their substantive rights.
Actuary: Under the FLL, actuaries are a part of the legal personnel appointed to the Labor Boards. They carry-out the required tasks of the Board which include notifications and recording of the facts in line with their duties, and can be compared with U.S. court clerks. See Articles 625, 626, 636, 640, 644, 645-I, and 646.
Adjudicate: To grant, give, or award.
Admission Clause: A clause which may be found in collective contracts or law-contracts wherein the labor union has a right to propose members of the union. Consequently, the employer has a duty to admit only those workers who are members of the union, in accordance with Article 395, first paragraph.
Amparo: A process often referred to as a trial where the constitutionality of laws, and violations to the Constitution and Regulations are challenged and resolved. A writ of relief.
Arbitration: Faculty of the Labor authority to decide.
Award: Decision dictated by the jurisdictional Labor authority.
Burden of Proof: Governed by Article 784, in order to gain knowledge of certain facts, the burden of proof is lifted from the worker when the Board employs other means, such as requiring an employer to disclose documents which are mandatory to preserve in the company.
By-laws, Labor Union: As provided for by Article 359, these are the autonomous regulations subject to the legal framework of Article 371.
Call for Strike: Included in a petition to an employer when there is failure to execute a collective contract, or obtain its revision per Article 450, II, or when the collective labor contract has been breached by the employer, according to Section IV of the same provision.
Cancellation: Invalidation of a former Labor act or authorization.
Cause: Motive or reason to rescind the work relationship, stipulated in Article 47.
Celebration: The execution or conclusion of a Labor contract.
Coalition: A temporary agreement among a group of workers or employers in defense of their common interests, per Article 355. Labor unions are permanent coalitions for the purpose of strike, as stipulated in Article 441.
Collective Interests: The general interests of a group or a class of people.
Collective Labor Contract: A convention celebrated between one or several labor unions and one or several employers, or one or several employer unions to establish the conditions under which work is to be performed in one or more companies or establishments. See Article 386.
Collegiate Circuit Tribunals: As provided by Article 158, first paragraph, under the Third Title, Direct Amparos Before the Circuit Collegiate Tribunals, Chapter I, General Provisions of the Amparo Law, they are the proper forum to bring direct amparos, under the terms established by Constitutional Article 107, Sections V and VI, proceeding against final decisions or awards or resolutions which put an end to the trial, dictated by judicial, administrative, or labor tribunals, where no other ordinary recourse is offered through which the decisions can be modified or revoked, whether the violation is committed in them or which, if committed during the proceeding, it affects the defenses of the claimant and transcends to the result of the decision, and for violations to guarantees committed in the same decisions, awards or resolutions mentioned. Article 44, under Chapter IV, Circuit Collegiate Tribunals, of the Organic Law of the Judicial Power of the Federation, establishes that with the exceptions in Articles 11, 24, 25, 26 and 27 of the same Law, the Collegiate Circuit Tribunals are competent to hear: "I. Direct amparos against final decisions or awards, or against resolutions which put an end to the trial, for violations committed in them or in the course of the proceeding when it involves: . . . d) In labor matters, awards or resolutions dictated by the boards or federal or local labor tribunals; II.-IX." Chapter VIII of the same Law, covers the territorial division of the distribution of the Judicial Power. Article 79 establishes that the territory of the Republic is divided into the number of circuits determined by the Supreme Court of Justice, en banc, indicating the territorial limitations of each. Article 80 explains that each of the Circuits comprises the judicial districts whose number and territorial limits are also set by the Supreme Court, en banc. Finally, under the Organic Law, Article 81 indicates that in each of the circuits, the number, the specialty and the territorial limitations of the Circuit Collegiate and Unitary Tribunals, as well as District Courts, which includes at least one in every judicial district, are to be determined by the Supreme Court. In addition, The Federal Code for Civil Procedures, First Book, General Provisions, Second Title, Judicial Authorities, Chapter I, First Section, Subject Matter Competence, stipulates in Article 20, that the Circuit Tribunals will hear, in the second instance, the matters pertaining to District Court jurisdiction. The Supreme Court of Justice, en banc, accorded in January, 1994, that the territory of the Republic be divided into twenty-three circuits with each of the circuits comprised of Circuit Collegiate and Unitary Tribunals, as well as District Courts.
Commission of Vigilance, Labor Union: Examines the irregularities brought by the Executive Committee or by the members of the union for non-compliance of the by-laws or the resolutions adopted in the assemblies.
Commission of Honor and Justice, Labor Union: The Commission hears the accusations brought by the Executive Committee, or by the members of the labor union against any member for conduct that is contrary to union probity, morality, or ethics.
Competence: Faculty granted by Law to a jurisdictional organ to hear a case.
Conflicts, Individual Labor: Where only the personal rights and the interest of a determined worker are affected.
Conflicts, Collective Labor: Where the rights and interests of a group or a class of persons are affected.
Continuous Shift: The uninterrupted hours within which work is performed as regulated under Articles 63, 64 and 70.
Contract: Mutual promises which create, or transfer rights and obligations. Article 1793 of the Civil Code for the Federal District defines it as a convention by virtue of which a right or an obligation arises or is transferred.
Convention: Meeting of the minds. Article 1792 of the Civil Code for the Federal District defines it as an agreement between two or more persons destined to create, transfer, modify or extinguish an obligation.
Company, Labor Union: As provided by Article 360, Section II, a labor union formed by workers who render services within the same company.
Day Shift: Work performed within the hours of six in the morning and eight in the evening.
Defer: To adjourn a hearing or a case.
Defense, Procurator's Office for Labor: Sections I-III of Article 530, enumerate the functions of the Office which are to represent the workers and their labor unions before any authority or advise them, when they so petition, over matters related to the application of labor laws. They can promote ordinary and extraordinary recourses to defend the worker and the labor union. They can also provide the parties with amicable solutions to their conflicts and certify the results in reports.
Deposit: Delivery of the collective contract, or the internal work regulation to the competent Labor authority, as provided for in Articles 390 and 425, as a requirement for validity.
District Courts: The Federal Code for Civil Procedure, (see above for Circuit tribunals) under Article 19, provides that their subject matter jurisdiction is established by the Organic Law of the Judicial Power of the Federation. Article 53, under Chapter V, District Courts, of the Organic Law dictates that the District Judges shall hear the cases on Labor subject matter concerning: "I. The amparo proceeding promoted according to Section VII of Constitutional Article 107, against acts by judicial authority in controversies which arise from the application of federal or local laws, when the legality or subsistence of an act by a labor authority, or of a proceeding followed by the labor authorities, must be decided; II. The amparo proceedings promoted against laws and other provisions of general observance in labor matter, under the terms of the Amparo Law; III. The amparo proceedings promoted under labor subject matter against acts of authority, other than judicial authority; and IV. The amparos promoted against acts by labor tribunals executed during or outside a trial, or after its conclusion which affect persons who are otherwise not judicially involved in the process. Article 114, Sections 1-VI, under the Second Title, Amparo Before the District Courts, of the Amparo Law governs the cases where an indirect amparo may be brought.
Ejecutoria: Judgment. A judicial document containing a decision issued by the Supreme Court of Justice or the Circuit Collegiate Tribunals which generally does not offer a recourse or appeal upon issuance. Subject to Articles 83, Section V, and 84, Section III of the Amparo Law, the decisions issued by the Circuit Collegiate Tribunals can be reviewed by the Supreme Court of Justice when they concern the Constitutionality of federal or local laws, international treaties, regulations issued by the President of the Republic, subject to Article 89, Section I of the Constitution, and local law regulation issued by the governors of the States, or when they establish a direct interpretation of a Constitutional precept. The recourse, however, is limited, exclusively, to Constitutional issues and by no means include any other.
Ejecutoriada: An executed decision.
Exception: The defense available to the defendant. A demurrer. It can also be compared to a motion to dismiss.
Exclusion Clause: A clause which may be found in collective labor contracts or law-contracts wherein the employer has a duty to separate from work the members reported by the labor union to the employer as having withdrawn from or expelled by the labor union. See Article 395, final paragraph.
Expert Witness: Persons who possess a considerable amount of knowledge in a science, art, or activity, whether professional or practical, which can enlighten a judge or tribunal regarding concrete facts of the field pertaining to a matter.
Extrajudicial: A settlement made outside the judicial process.
General Minimum Salary: As indicated by Article 91, it may be generally applicable to one or several geographic areas which may extend to one or more federal entities, or professional for a determined branch of economic activity, or for professions, occupations or specialized work within one or several geographic areas. Article 92 stipulates that the general minimum salaries are applicable to all the workers of [a] determined geographic area(s) notwithstanding the branches of economic activity, or professions, occupations or specialized work.
Holder of Collective Labor Contract: The labor union which has succeeded in obtaining a majority of workers through declaration by the CAB of the loss of majority of a previous holder. See Article 389.
Home-based Work: The work performed for an employer in the home of the worker, or any other place chosen by the worker which is unsupervised and where the worker is not under an employer's immediate direction .See Article 311.
Illicit Strike: An unlawful temporary work suspension. See Article 445.
Indemnification: Payment stipulated by Law.
Individual Labor Contract: The contract through which one person is obliged to render personal subordinated services to another in exchange for the payment of a salary. See Article 20.
Industrial, Labor Union: According to Article 360, Section III, a labor union formed by the workers who render services in two or more companies of the same industrial branch.
Injury: The damages which result from the violation of Labor rights.
Internal Work Regulation: Body of rules established to regulate the manner in which work is to be performed. See Articles 422-425.
Interpretation, Judicial: A preliminary clarification of the meaning of a law to enable its correct application by the jurisdictional organ in a process. When it is issued by a supreme or higher tribunal, it may become jurisprudence under certain conditions.
Inspection, Labor: The functions of this Labor authority are governed by Article 540, Sections I-V. They include monitoring of labor law compliance, providing technical assistance and informing workers and employers over effective compliance of labor laws; alerting labor authorities regarding labor omissions and violations observed in work-sites, conducting studies and obtaining the information required by Labor authorities, as well as any other which is necessary to obtain harmony in worker-employer relations, and other additional functions conferred by the laws.
Juridical act: The externalization of will or volition producing legal consequences.
Juridical fact: Human conduct or natural occurrences which produce legal consequences and which do not depend on the will of persons.
Juridical Norm: Rule of conduct.
Jurisdiction: Sovereign function of the State which oversees litigation or controversies.
Jurisdiction, federal: Faculty granted by Law to the jurisdictional organs of the Federation to hear a case.
Jurisdiction, local: Faculty granted by Law to jurisdictional organs in a State Entity to hear a case.
Jurisdictional Organ: A State organ which resolves a controversy.
Jurisprudence: Article 192, under the Fourth Title, Jurisprudence of the Supreme Court and of the Circuit Collegiate Tribunals, of the Amparo Law provides that five ejecutorias which are not interrupted by another to the contrary, issued by the Supreme Court of Justice as a legislative body, and approved by at least fourteen Ministers result in jurisprudence. The ejecutorias issued by the Salas also result in jurisprudence when five decisions have been issued with the same reasoning, and no contradicting ejecutoria has interrupted the reasoning sequence, provided that they are approved by four Ministers. Jurisprudence also results from the resolution which decides over a contradictory thesis issued by either the Salas or the Collegiate Tribunals A thesis of jurisprudence has the force of a legal provision. Consequently, when issued by the Supreme Court of Justice it is binding on the Court itself, as well as on all lower courts: the Circuit Collegiate Tribunals, the Circuit Unitary Tribunals, the District Courts, military tribunals or judicial of the common order of the States and of the Federal District, and federal or local administrative and labor tribunals. Article 193 states that the ejecutorias issued by the Collegiate Tribunals operate the same way, except that the votes to approve them have to be unanimous. Their jurisprudence is binding on the Tribunals themselves, the Circuit Unitary Tribunals, and on the District Courts.
Justified Strike: One motivated by an employer, per Article 446.
Labor Union: An association of workers or employers constituted to study, advance and defend their common interests, per Article 356.
Lack of Probity: Dishonesty or lack of integrity. By employer, see Article 51, Section II. By worker, see Article 47, Section II.
Legal Benefits: The minimum benefits to which the workers are legally entitled, and which include vacation periods, annual bonuses and seniority premiums.
Legal Duty: Obligation to conduct oneself in accordance with a legal norm.
Legal Offense: Act or omission which is sanctioned by the penal laws. It can also be defined as an anti-juridical conduct which contains the characteristics of typicality and culpability which produce harm.
Legally existent strike: As provided by Article 444, it is a strike which satisfies the legal requirements and has the objectives indicated in Article 450.
Legally inexistent strike: A strike which does not meet the requirements of Article 459, nor the objectives indicated by Article 450.
Legislation: A body of governing laws pertaining to a subject matter.
Litigation: A qualified conflict of interests with judicial transcendence.
Lost Wages: Payment due for a cause motivated by an employer.
Minimum Salary: As provided by Article 90, it is the least cash amount payable to a worker for the services rendered during a work-shift. Minimum salary must be adequate enough to enable the head of family to satisfy the normal basic, social and cultural needs, as well as to provide the children with a legally required education.
Miscellaneous Occupations, Labor Union: Formed by the workers of diverse professions. These labor unions can only be constituted when in a municipality, the number of workers of the same profession is under twenty.
Mixed Commission: The persons designated by the workers and employer which are to carry-out certain functions in the interests of both factors of production.
Mixed Shift: The work schedule which comprises the hours of day and night shifts.
National Industrial Labor Union: As defined by Article 360, Section IV, formed by workers who render services in one or several companies of the same industry established in two or more Federal Entities.
Negative Prescription: A means through which an obligation can be extinguished by the mere passage of time.
Night Shift: The work schedule between the hours of eight in the evening and six in the morning.
Norm: Rule of conduct.
Notification: Hand delivery of a summons requiring a personal appearance before the issuing forum.
Obligatory: Binding, forceful.
Originating Source: Primary source from which something arises for the first time.
Over-time: The extra hours worked due to an extension of a company's normal activity, governed by Articles 66-68.
Parties: The persons who have a legitimate interest in a trial or matter.
Peritos: See expert witness.
Permanent Worker: The person who has a work relation for an indefinite period.
Petition: A written document containing a requirement to the Boards or to an employer.
Positive Prescription: A means through which rights can be acquired by the mere passage of time.
Preferential Rights: A preferential order provided by Article 154, through which workers may compete for vacancies or promotions to newly created vacancies, following an order for competition.
Prescription: A means through which rights may be acquired or obligations may be extinguished by the mere passage of time. See Statute of Limitations.
Procedural moment: Part of the legal process.
Professional association: Under Mexican Law, it is a union of workers or employers which studies, advances and defends their common interests. See Article 356.
Recognition of labor union, Employer: The manifestation of acceptance by an employer of a labor union as the bargaining representative of the workers arising from the execution of a collective labor contract.
Recognition of labor union, Official: As provided by Article 368, the registration granted by the STPS or by the Local CAB's enables a labor union to act before all FLL authorities. Its authorized registration also enables a labor union to exercise its legal rights as a fictitious person.
Recount: Offered as evidence where objections to the majority results through worker voting has been made. See Articles 895, III, and 931.
Registration, Labor Union: Under the FLL, it is the legal requirement mandated by Article 365 which provides the labor union official recognition, according to Article 368, to represent the workers and defend their interests, per Article 375, and juridical capacity to exercise internal rights, as accorded by Article 374.
Remedy: Application of measures to repair , compensate or amend an injury.
Relief: Refers to that which the worker seeks to obtain through the lawsuit, and or the award given by the CAB.
Require: To ask or petition.
Rescission: To annul or make an act or contract ineffective.
Responsibility: Liability. Worker liability is limited to Article 32. Employer Liability is subject to the following Articles: 13. 15. 41. 203, 260 and 281, as well as to the Responsibility and Sanctions for violations to the Labor laws. Labor authority liability is subject to Articles: 708, 710 and 848, and to the Responsibility and Sanctions imposed by Articles 1003 and 1005 of the FLL.
Responsible Authority: Per Article 11, under the First Book of the Amparo in General, First Title, General Rules, Chapter II, Capacity and Personality, of the Amparo Law, it is one who dictates, promulgates, publishes, orders, executes or attempts to execute the challenged law or act.
Revision, Amparo: Per Article 83, under the First Title, Chapter XI, Recourses, of the Amparo Law, a recourse promoted in a higher instance to challenge the revocation, modification, or confirmation of the decision or resolution.
Salary: Payment made by an employer for services rendered by an employee. See Articles 82-89.
Sanction: Punishment or penalty. Under the FLL, sanctions are covered in Title Sixteen by Articles 992-1010 for violations to labor laws. In 1986, the penal sanctions and fines were increased in Article 1004 regarding violations to the minimum salary.
Social Law: A part or branch of Law regulating the laws which protect the economically disadvantaged.
Social Security: Article 2, under the First Title, General Provisions, of the Social Security Law states its objectives: "...to guarantee human right to health, to medical assistance, to the protection of the necessary means for subsistence and social services for the individual and collective welfare."
Solidarity strike: A strike in support of another strike which has one of the objectives of Article 450.
Subordinate Work, personal: Rendered by a worker under the direction and dependency of the employer.
Suit: The document containing the relief requested, the statement of facts and the applicable law which ground the action.
Summon: Notification of a party requiring appearance before its forum.
Support of a strike: A solidarity strike.
Supreme Court of Justice: Article 18 of the Federal Code for Civil Procedure (see above for Circuit Collegiate Tribunals and District Courts) provides that the matters under the jurisdiction of the Supreme Court, except where it concerns amparo proceedings, are always decided in one instance, en banc. The remaining matters, absent a special law, shall be decided by the District Courts, in the first instance, and as appeal, before the Circuit Tribunals under the terms where a recourse is available, in accordance with the provisions of the Code. If a matter involving local jurisdiction, or a federal tribunal of specialized organization, attracts the interest of the Federation, regardless of the way in which it arises, the competence of the court hearing the case shall cease, and is to remit the matter to the Supreme Court, or to the District Court, according to the nature of the interest. Conversely, when the Federation no longer has an interest in a case, or where it has definitely resolved the question in it, the jurisdiction of the ordinary Federation tribunals shall cease. Article 11, Chapter II, Supreme Court of Justice, of the Organic Law of the Judicial Power of the Federation indicates in Sections I-XV, the matters which it is to resolve as a plenary body. Aside from the latter function, the Supreme Court also functions in Chambers, or Salas. Article 27, Sections I-XI, lists the matters under the competence of the Fourth which corresponds to Labor.
Suspension from Work: A disciplinary measure brought about by a violation to the Internal Work Regulation. Article 423, Section X, stipulates that the IWR is to include the disciplinary measures and the procedure for application. However, suspension from work is not to exceed eight days and the worker has a right to be heard before imposition of the sanction. Sometimes a labor union, as agreed to in a collective labor contract, may require the employer to apply a disciplinary measure for violation to the union by-laws. If the corrective measure is in the form of a suspension from work, it is often stipulated that such measure is not to interfere with the company's routine operation, meaning that where several workers violated the union by-laws, the labor union will not require the employer to sanction workers of equal category at the same time.
Statute: Rule or legal norm.
Statutes, labor union: By-laws; constitutive norms or rules through which fictitious persons govern their internal affairs.
Statute of Limitations: See prescription.
Strike: Temporary work suspension carried out by a coalition of workers. See Article 440.
Strike, full blown: Suspension of work manifested by the hanging of a strike flag.
Temporary Worker: A worker who renders services to an employer for a specified task or period, and whose work relation is governed by Articles 36 and 37.
Termination: The dissolution of a work relation or the expiration of a labor contract. See Articles 401, 421, and 433-439. It also refers to the termination of the work relation declared by the CAB, per Article 934, as a sanction to an unlawful strike, described in Article 445.
Third Interested Party: According to Article 690, it refers to persons who tend to be affected by the resolution of a conflict, and who may intervene in it after proving their judicial interest or when, at the discretion of the Board, they are summoned to appear.
Third Affected Party: Under the Amparo Law, Chapter II, Capacity and Personality, Article 5, Section III, provides the circumstances under which a party may be considered one: "...a) An opponent of the affected party when the challenged act arises from a trial or a controversy other than a penal matter, or any of the parties when the amparo is promoted by a person who would otherwise not have a judicial interest; b) The affected party or persons, who according to Law, have a right to damages or to demand civil liability which arise from a legal offense...; c) The person or persons who have promoted in their favor the act being challenged when it involves measures declared by authorities other than judicial or labor; or who, without having promoted, have a direct interest in preserving the challenged act.
Trade Labor Union: As defined by Article 360, Section I, consists of workers of the same profession, occupation or specialty.
Trust Worker: A person whose job involves direction, inspection, observance, and investigation when of a general character, as well as personal services for the employer. See Article 9.
Unjustified Cause: A rescission of the work relation by the employer without a legal foundation, particularly those enumerated by Article 47 which exonerate the employer from liability.
Unjustified Failure or Fault: Liability for an inexcusable act by either the worker or employer. See Articles 133, Sections I-XI, 135, Sections I-X, 47, Sections I-XV, and 51, Sections I-IX.
Unlawful strike: As provided for by Article 445, when the workers violently act against persons or things; and during war, when the workers belong to establishments or services dependent on Government
Work Conditions: The stipulations found in a labor contract agreed to by the worker and employer.
Work Relation: Rendering of a personal, subordinated service in exchange for the payment of a salary. See Article 20.
Work Shift: Comprises the time in which a worker is at the disposal of an employer in performance of the work, governed by Articles 58-68.
Work Suspension: A work stoppage; a temporary work interruption. Collective work suspensions are governed by Articles 427-432. When the work suspension is due to a strike, it refers to the suspension of the effects of the work relation, regulated by Articles 443, 447 and 451.
Note: All article numbers cited here and throughout the Report pertain to the Federal Labor Law unless otherwise indicated.
This Report is an analysis of submissions Nos. 940003 and 940004, brought before the United States National Administrative Office (US NAO) of the US Department of Labor. Examined, herein, are the substantive and procedural aspects of the Mexican Labor Law, including the interpretations given by the higher courts on these and analogous issues. Because the Labor amparo is a crucial "recourse" to unfavorable resolutions by Labor authorities, it is discussed in context with the questions from the US NAO.
The Report was designed to answer the specific "Questions Presented" by the US NAO and provide further significant information.
The Appendix contains more material related to the issues in this Report. Its volume made it necessary to incorporate it in that section to avoid interruption of the flow of questions and answers. Therefore, additional Federal Labor Law (FLL) regulation and jurisprudence on collective labor agreements, law-contracts, and the procedure for their modification, as well as complementing statistics from the Secretariat of Labor and Social Welfare (STPS) can be found there. Also included are a jurisdiction table and chart to abridge comprehension of the distribution of competence by the Labor Boards according to conflicts, and a liability and sanctions table for violations to the FLL.
Mexico's international obligation to honor the North American Agreement on Labor Cooperation (NAALC), the labor side agreement to the North American Free Trade Agreement (NAFTA), following the principle of pacta sunt servanda, is apparently fulfilled through Article 133 of the Mexican Constitution. The Constitutional mandate establishes that international treaties in harmony with the Constitution, celebrated by the President and approved by the Senate, are the Supreme Law of the Union. However, Mexico's international Labor obligations concerning the International Labor Organization (ILO.) Conventions and the NAFTA's NAALC need to be distinguished in terms of the manner in which effective compliance is evaluated.
Under the I.L.O., the Member State's initial obligation is to incorporate the contents of the convention into domestic law and national practice, if not previously included, in accordance with Article 19.5.d) of the I.L.O. Constitution. This article establishes that immediately after communicating the formal ratification of a convention, the Member State must adopt, "...the necessary measures to effectively enforce the provisions of the convention."(1) After this is done, the Member State can show through either Detailed or Compliance Reports, prepared by its own government, the ways in which it has effectively complied with the Convention's articles as required by Article 22 of the I.L.O. Constitution.(2)
Comparatively, under the NAALC, when a submission is brought to the NAO forum, it not only examines that the Labor Principles enumerated in Annex I of the NAALC are found in the Party's domestic labor law, but that a Party has indeed promoted compliance of, and effectively enforced its labor laws, as provided in Part II, Article 3, Paragraph 3, subparagraphs (a) - (g), Part Two.
Consequently, the issue of whether Mexico promoted compliance with, and effectively enforced its domestic Labor laws is to be determined after examining whether its government omitted to monitor compliance or to investigate suspected violations. As provided in Part II, Article 3, Paragraph 1, subparagraphs (b), (f) and (g), Obligations of the NAALC, they include: on-site inspections; providing or encouraging mediation, conciliation and arbitration services; or a timely initiation of the proceedings that impose the proper sanctions or remedies for violations of the labor law, State Executives are mandated by Constitutional Article 120 to internally publish and enforce federal laws. Therefore, the Federal Labor Law, a federal statute issued by Congress, is to be published and enforced by the Local Governments. Moreover, the President of Mexico has the obligation to monitor compliance on a federal level as is enunciated in Section I of Article 89: To promulgate and execute the laws from Congress, and ensure their effective observation in the administrative setting."
The obligation to publish federal laws on both National and State levels is not difficult to establish. Mexican laws are published in the Diario Oficial de la Federación and in each State's official newspaper. However, the essence of Constitutional Articles 89 and 120 is the obligation to monitor compliance of the laws created by Congress on a national level and in a uniform manner. The extent of satisfying that obligation can be hard to determine. There is a need to examine concrete cases that can show how these laws are enforced by the Federal and State labor authorities.
Government Enforcement Action, Article 3, Part II of the NAALC requires that a Party promote compliance and effectively enforce its labor law. Mexico's substantive and procedural Labor laws are governed by the Constitution. Therefore, while the principles of legality and judicial security are constitutionally guaranteed by Articles 14 and 16, the amparo is the specific mechanism to remedy violations committed by governmental authorities. The weight of such mechanism can be understood as the branch of Mexican law through which other branches of its system are checked and balanced to ensure effective enforcement of Constitutional rights and laws. The Right of Amparo, governed by Articles 103 and 107 of the Mexican Constitution and regulated under amparo law, is the fundamental measure through which compliance of all Constitutional laws is promoted.(3) It is also the means through which these laws are effectively enforced when authorities violate any of the Constitutional guarantees.(4)
The issues brought before the US NAO concerning Constitutional violations by governmental authorities, can be resolved through proper administrative and judicial processes. If, after exhausting these means, the injured parties are unable to obtain a favorable outcome, an amparo can be promoted to seek relief. The amparo, however, should be regarded as the last resort against violations to individual rights.
What are the procedures and requirements for formation of a union and its registration?
The FLL regulates the right of freedom of association through Articles 354, 357 and 358. The essence of the freedom of association is founded on Article 357: "...workers and employers have the right to form unions without having to obtain prior authorization..."; and Article 358 "...that no one can be compelled to become a member or not." The last paragraph of Article 358 warns that any stipulation establishing a conventional fine in case of separation from the union, or which in any way changes the meaning of the provision found in the preceding paragraph, will be disregarded. If the latter is correctly interpreted, then why is the exclusion clause applied when a union member resigns from the labor union and is, consequently, separated from work? As is later discussed, the Law recognizes the exclusion clause through Article 395, but it does not impose it on the parties to Collective Labor Agreements (CLAs) or Law-Contracts (LCs), rather, it grants the parties freedom to negotiate it. Because the Law acknowledges competition by several labor unions to hold a CLA or administer an LC, the exclusion clause is applied to safeguard membership losses.(5)
Formation of a Labor Union:
Labor Union Registration:
Labor Union Registration Denial:
Once the requirements have been met, registration may not be denied by any of the proper authorities. Alberto Trueba Urbina(8) and Juan B. Climent Beltrán(9) both agree that registration is not automatic at the end of the sixty-day period. At that time, the petitioners can require the CAB to resolve the labor union's registration, and if it does not do so within a three day period following the request, then it is assumed to have been granted and the CAB must issue a registration certificate.
Analysis of Registration Denial:
Section III explicitly justifies denial of the registration when the petitioners do not submit the required documentation indicated by Article 365. However, unless a CAB is to be challenged through an amparo, its considerations for denial must not be obscure, i.e., it needs to specify the documents that the petitioner failed to submit as required by Article 365 in conjunction with Article 371.
Denial of a registration on the basis of the existence of a CLA held by a trade union whose members have joined another union requesting registration, is not one of the three conditions for denial expressed in Article 366 of the FLL . However, the following decision in an amparo under review, issued by the First Collegiate Tribunal on Labor Subject Matter of the First Circuit upheld the District Court's decision to deny it on such grounds.
According to the above thesis, a labor union was attempting to register under the same classification as the one holding a collective labor contract in the same workplace. In such a case, the labor union would be barred from registration due to a lack of union objectives indicated in Article 356, a condition for registration and the basis for denial as stipulated by Section I of Article 366.
On the same issue, Climent Beltrán points out that the following concept contains the reasoning behind a resolution issued by the Office of the Registrar of Associations of the STPS that on March 4, 1981 denied registration to the Sindicato Unificador Nacional de Mecánicos de Aviación:
Moreover, under such circumstances, if the members under the CLA are not a majority, and the CLA contains an exclusion clause, the workers who support an unregistered union risk application of the clause. According to Article 395, second paragraph, the exclusion clause is applicable if workers are separated by the employer at the request of the holder of the CLA.
On the other hand, if the members petitioning registration of a new labor union are a majority, the union controlling the CLA would, logically, be unable to apply the exclusion clause because, as indicated in Article 371, VII, f), the expulsion requires that the majority of the two-thirds of the total number of members of the labor union approve.
Notwithstanding the above, as long as the labor unions are under a different classification according to the rules for union control of the CLA, established by Article 388, under the Seventh Title, Collective Labor Relations, Chapter III, Collective Labor Agreement, and since the law has previously envisioned the existence of various unions within the same workplace, a union classified as a company union(12) can have the objectives stipulated by Article 356 and rightfully coexist alongside a trade union in accordance with Articles 354, 357 and 358 of the FLL, which encompass the freedom of association and the right to form unions. While a CLA is in effect, should its holder lose majority status, the Board is to declare it, as established in Article 389 after it has been decided through the special procedure covered by Articles 892-899.
Despite the above, the Sixth Collegiate Tribunal on Labor Matters of the First Circuit did not find that the existence of another labor union to which members already belonged was a cause for denial. Apparently the decision did not focus on the issue of identical classification, which would make the unregistered union lack the objectives of Article 356, but it did solely on the causes for denial provided by Article 366.
One of the principal goals behind unionization is to obtain employer recognition as the bargaining representative through which a CLA can be negotiated. Accordingly, a labor union is enabled to provide its members with better working conditions than those established by Law.(14)
After proper registration (as mentioned above) and authorization of their registration before the STPS or Local CAB, labor unions are granted official recognition. It means that they are officially authorized to act before Labor authorities, as recognized by Article 368, and to legally represent their membership in accordance with Article 375.
In the absence of another labor union and CLA, the official recognition, authorizes a labor union to request an employer to enter into a CLA provided, of course, there is an ongoing work relation between the employer and the workers in compliance with Articles 364 and 387.
Climent Beltrán stresses the requirements for entering into a CLA consistent with Articles 387 and 388. First, the labor union must be legally constituted, which means that the right to the CLA cannot be demanded by individual workers, regardless of their number, if they are not unionized, or if they fail to act through the union. Next, the labor union has to show its professional interest through at least two or more members who work in the company according to the decisions issued through direct amparo No. 3942/43 issued on November 4, 1943, and amparo No. 46/1955 resolved on March 12, 1956. The final requirement involves observance of the rules in Article 388 when several labor unions compete.(16)
There is also a question of whether the majority rule is applicable at this stage. Néstor De Buén believes that the majority requirement is not essential when the labor union is requiring the CLA. While the majority requirement originates a collective right, it does not come into play until after a strike has been called to compel the employer to sign the CLA.(17) Later, under the strike proceedings, if any of the parties want to establish that the strike is non-existent, they can petition the CAB to declare the inexistence on the basis of Articles 451, Section II, and 929, when a minority supports the strike.
If the employer refuses to sign a CLA, a labor union, or a coalition of workers can petition the employer to do so with a call for strike, as the objective of Article 450, Section II. A strike of this nature is followed in the proceeding covered by Articles 920-938, under Title XIV, Procedural Labor Law, Chapter XX, Strike Proceedings of the FLL. Employer incompliance with a CLA also leads to a petition with a call for strike for breach, as stipulated in Section IV of Article 450.
The answer to this question depends on whether or not an employer has already entered into a CLA, as well as whether or not other labor unions are competing for one. Another factor is the issue of whether a majority of workers favor the union that is to represent them.
When an employer refuses to sign the CLA, the labor union can petition the employer with a call for strike on the basis found in Article 450, Section II.
Because employers are compelled to enter into CLAs and their consent is subject to a sanction inherent in the workers' right to strike, Trueba Urbina believes that the principle of the autonomy of the parties is nonexistent in this branch of Law.(18)
Article 389 establishes that a loss of the majority of workers declared by the CAB produces the loss of the CLA. Such determination is to be based on the rules of Article 388, Sections I-III, where several labor unions compete to hold the CLA, as follow: I. Where company unions or industry unions, or one or the other, simultaneously represent workers in the same concern, the collective labor agreement is to be entered into with the union that has the majority of workers within the company; II. Where several trade unions simultaneously represent workers, the collective agreement is to be entered into with the majority group representing the professions, as long as they agree. When this is not possible, each union is to enter into a collective agreement of their own according to the profession represented; and III. Where trade and company unions, or industry unions simultaneously represent workers, the first may enter into a collective labor contract for their profession, as long as the number of members is higher than the one for the workers of the same profession who are members of the company or industry unions.
Assuming, there is a CLA held by a first labor union, an employer does not have a duty to grant the second recognition unless, in accordance with Articles 388 and 389, the CAB has declared the loss of the majority by the first labor union. The declaration would enable the second labor union to claim the majority, as well as employer recognition as bargaining representative.
The rules in Article 388 plainly suggest that the Law accepts union plurality, i.e., the possibility of more than one labor union competing in the same workplace and, according to Néstor de Buén, even the possibility of more than one CLA held by several types of labor unions. However, as De Buén points out, specialty and majority are the principal signs to determine which of the unions will hold the CLA.(19) Therefore, when such majorities are at issue, they can be resolved through the Special Proceeding, found under Title Fourteen, Procedural Labor Law, Chapter XVIII, Articles 892-89, designed to expeditiously resolve them.
Under the above assumption, Climent Beltrán states the reasons why the application of Article 387 is limited. To start, a strike would be unfair to an employer who has already complied with the obligation mandated. Furthermore, a strike under those circumstances would lack the objectives of Article 450, and would make it legally inexistent, according to Article 459, Section II, since it would be motivated by an inter-union struggle that is not an objective of the strike. As a result, an outside labor union, is not legitimized to petition an employer for a CLA with a call for strike, which, in any case, an employer is legally prevented from entering into.(20) Climent Beltrán further explains that, ". . .when a labor union holds a CLA, or administers an LC, where either are in effect, and a coalition competes for either one, petitioning the employer with a call for strike, such coalition lacks legal standing to do so. Only the labor union, as a permanent coalition, can represent the professional interest of the workers who are at the service of a company in the exercise of their collective actions and the right to strike. . ."(21) Consequently, as mentioned earlier, whenever labor unions compete for CLAs, the proper procedure to establish majority is through the Special, not the Strike proceedings. The latter is reserved to compel an employer who has not previously executed a CLA, but refuses to do so.
Article 923, found under Strike Proceedings, cautions that a petition with a call for strike presented to the CAB will be rejected unless the requirements listed in Article 920 are met. The rejection will also apply when it is presented by a labor union other than the holder of a CLA or administrator of an LC, as well as when demand for a CLA is being made where one has already been deposited with the CAB. Before initiating the proceedings for any call for strike, the President of the Board, must verify that a CLA has not been previously deposited. After this is done, the President will order the corresponding certification, and will notify the petitioner of its resolution in writing.
Special proceedings are designed to expedite matters that due to their nature, require an expeditious resolution. Article 892 specifies that the conflicts arising from the application of the articles indicated therein, including Articles 389 and 418 (for LCs), regarding the Board's declaration of majority loss, are subject to Special proceedings.
As mentioned in Article 893, the procedure begins with a suit through which the plaintiff offers evidence before the appropriate Board. The Board then summons the parties to a hearing ten days in advance. The conciliation, the action(s) and defenses, evidence and resolution, are all covered during the hearing that is supposed to take place within fifteen working days following the day in which the action was brought. The defendant is cautioned by the Board issuing the summons, that failure to appear will be regarded as acceptance of the plaintiff's petitions, except where they are contrary to Law, as provided in Article 894.
The conciliation, action and defense, evidence and resolution hearing is governed by the rules in Article 895: I. The Board is to attempt conciliation in accordance with Sections I and II of Article 876 of the Law; II. When a conciliation is not possible, the parties are to declare whatever they feel is convenient, then they are to formulate their petitions, offer evidence, and introduce only that which has been admitted; III. If a recount of workers is offered, the rules in Article 931 are followed; and IV. When the admission of evidence is concluded, the Board will listen to the allegations and declare a resolution.
If the plaintiff does not appear at the hearing, as provided in Article 896, the initial suit and appearance is to be considered as established, and, if required, any accompanying evidence will be regarded as having been offered. Article 897 points out that in the case of Article 389, regarding the loss of majority and consequently, the loss of a CLA, as declared by the CAB, and Article 418, concerning the same matter for LCs, the President of the Board or the Special Board is to intervene. The special procedures are subject to the provisions of Chapters XII and XVII, under this Title, in any way applicable.
Right to Strike as a Remedy to Compel the Employer to Enter into a CLA When no Prior CLA Has Been Executed:
As indicated earlier, when there are no other labor unions competing for a CLA, should an employer refuse to enter into a CLA, a duly registered labor union may petition an employer with a call for strike. The question regarding majority, however, is not to be determined initially, and may only be challenged later, under the strike proceedings, when any of the parties affected by the strike can ask the CAB to declare its inexistence.
The most important tactic involving strikes is the work suspension. However, Article 451 limits the suspension conditioning it to the following requirements: I. The strike must have one of the objectives of Article 450. II. The work is to be suspended by the majority of workers. However, the last part of Section II, indicates that the majority determination is not to be an issue prior to the work stoppage. In accordance with Article 929, Title Fourteen, Procedural Labor Law, Chapter XX, formerly, Article 460, the majority issue can only be brought up to justify that the strike is inexistent. Consequently, it appears that the "majority of workers" rule is not a prerequisite for the strike, in itself, to begin. The final requirement before suspending work, per Article 451, Section III, is that Article 452 prerequisites are met. Here, again, Article 452 was derogated and replaced by Article 920 in Chapter XX of the Procedure for Strikes.
Climent Beltrán explains that Section I of Article 451, refers to the fundamental requirement for strike, while Sections II and III, refer to the formal requirements, noting that Section II does not allow a previous recount.(22) To determine the legality of a strike, first it must meet the requirements of Article 450 which are the objectives of the strike. Next, it will be necessary to examine Article 459 that provides the cases under which a strike is inexistent: I. The work suspension is carried out by a lower number of workers than those established in Section II of Article 451; II. The strike has not fulfilled any of the objectives established in Article 450; and III. The requirements of Article 452, now Article 920, have not been met. The last paragraph states that the strike cannot be declared inexistent for any other reasons than these.
Under Article 929, the parties affected by the strike may petition the Board within seventy-two hours of the work suspension to ask that it be declared inexistent for the reasons indicated in Article 459 that make the strike inexistent, as does the failure to meet the requirements of Article 920. If there are no petitions for the CAB to declare the strike inexistent, then it will be considered legally existent.
Article 930, Sections I-VI, constitute the proceeding through which the inexistence may be declared: I. The petition is to be presented in writing with a copy for each of the summoned workers and the labor unions or coalition of workers who are summoning. The legal causes and grounds must be indicated on the petition. No subsequent varying causes for inexistence are to be argued.; II. The Board is to notify the striking parties of the petition for inexistence and will listen to the parties at a hearing where offer and admission of evidence is to be conducted within a five-day term. III. The evidence shall refer to the causes for inexistence contained in the petition mentioned in Section I, and, where the petition is presented by third parties, these should also tend to prove their interest. The Board will only accept evidence that satisfies the mentioned requirements; IV. The evidence is to be presented at the hearing, except for the provisions in the following article . Only in exceptional cases will the Board defer their admission when, due to their nature, they cannot be exhausted at the hearing.; V. At the close of the phase for the admission of evidence, the Board is to resolve the existence or inexistence of the legal status of the strike within the next twenty-four hours; VI. If it is to resolve for inexistence, then representatives of workers and employers of the Board are called to form the panel. The resolutions are decided by the attendees. If the decision results in a tie, the absentee votes are added to that of the President.
When a recount of workers is offered as evidence, the rules in Article 931, apply: I. The Board designates the place, day and hour in which it is to be conducted; II. Only the workers of the company who attend the recount have a right to vote; III. The workers who were dismissed by the company after the date of the petition to the employer, will be considered workers of the company; IV. The votes from trust workers, or those who were admitted to work after the petition to the employer, will not be counted; and V. The objections to the workers who attend the recount are to be made at the exact time of the task, in which case, the Board is to summon a hearing for offering and admission of evidence.
Trueba Urbina explains that the above proceeding is the first to regulate the recount of workers, which is conducted only where the majority is an issue argued by the companies, workers or third interested parties, and as such, the recount does not apply to other circumstances. Furthermore, he clarifies, as indicated above, a recount prior to the work stoppage would originate a premature qualification.(23)
Climent Beltrán explains that the strike can be classified as legal, illegal, or existent, inexistent, and as justified or unjustified, but in the end, the most significant is that the Board declares the strike as existent.(24)
Because the legality of the strike is an inherent part of its existence, having examined the contents of Article 459, Sections I-III, which describe the instances where the strike is legally inexistent, it can be concluded, that as long as (I) the strike is exercised by the majority, even though it is not an issue until it is raised by those who oppose it and petition for inexistence; (II) that the strike meets the objectives, according to Article 450, Sections I-VII, which are the same requirements of Article 444 which make the strike legally existent; and (III) having complied with the procedural requirements of Article 920, a strike can be considered as legally existent.
Applicable Jurisprudence concerning Recount:
If the Board declares the strike inexistent, Article 932 establishes the following: I. The Board will set a twenty-four hour term for the workers to return to work; II. It will announce its resolution to labor union representatives, cautioning the workers that, except for justified reasons, their failure to comply with the resolution will terminate their work relationship with the employer; III. The Board will declare that the employer has not incurred any liability, and that by failing to report for work within a specified time, the employer will be free to employ others; and IV. The Board will order the appropriate measures to resume work.
When a strike is determined unlawful, as described by Article 445, the Board declares the termination of the work relationship in accordance with Article 934. Climent Beltrán construes that Article 445 points to the two unlawful instances of a strike. Because Article 934 authorizes the CAB to declare the strike unlawful and order the termination of the work relationship, 934 acts as the sanction applied against the transgressions of the strike.(26)
Please refer to the answer to Question 1 concerning the majority of workers in support of a union seeking recognition through the administration of a CLA.
As specified earlier, the workers seeking representation from a union which has not been recognized by an employer as the bargaining representative, risk application of the exclusion clause, if such has been established in the CLA. However, as also mentioned, when there is a majority of workers opposed to the labor union to which they belong, the workers can opt for its dissolution, which according to Article 379, Section I, requires a two-thirds membership vote, and start a new one. They can also opt to renounce the Board of Directors of the labor union to which they belong and form a new one applying or modifying the by-laws, accordingly, in compliance with Article 371, Section VIII of the FLL. In this case, the labor union cannot apply the exclusion clause in detriment of the majority of the workers, or expel them since the labor union is no longer privileged by a majority vote of the two thirds of total members of the union as Section VII of Article 371 requires.
Generally, ordinary assemblies are called every six months. This concurs with Article 373 which requires that a labor union's Board of Directors render its assembly a complete and detailed account of the administration of the union's estate at least every six months. As required by Article 377, labor unions have an obligation to inform the authority under which they are registered of any changes in the Board of Directors, or modifications to their by-laws within a ten-day period after they occur. They also have to notify the authority of the new memberships and withdrawals at least every three months.
Ordinary assemblies deal with new memberships and approvals, as well as with withdrawals from the labor union. Extraordinary assemblies deal with executive appointments, removals from office, expulsions, modifications of the by-laws, and dissolution of the labor union, among others.(27) Article 371, Section VIII, imposes that the manner in which to call assemblies, their frequency and quorum is to be described in the by-laws. When the Board of Directors does not call assemblies, as established in the by-laws, the workers representing at least thirty-three percent of the total of the union members, may require the Board of Directors to do so. If it fails to convoke within a ten-day period, the workers may do so, but in order for the assembly to session and adopt resolutions, two-thirds of the total membership of the labor union or of the section must attend. The resolutions must be voted on by fifty-one percent of the total number of members of the labor union or section. Climent Beltrán indicates that matters involving expulsion, stipulated in Section VII of Article 371, a)-g), modification of union by-laws, acquisition or sales of labor union property, dissolution, as stipulated by Article 379, increase in union dues, or those called by the workers which represent thirty-three percent of the total membership, to resolve, require the approval of two-thirds of the total number of members of the labor union.(28)
It depends on whether or not their CLA contains an exclusion clause. If the exclusion clause is not found in the CLA, the workers may join another union. The right of freedom of association and to form trade unions is guaranteed by Constitutional Article 123, Part A, Section XVI , and regulated by Article 358 which provides that, "No one can be forced to join a union or not to. Any stipulation which establishes a conventional fine in case of separation from a labor union or which in any way modifies the provision contained in the preceding paragraph shall be ineffective." Section XXII, also in Constitutional Article 123, subjects an employer who dismisses a worker ". . .for having been admitted to an association or union, or for taking part in a legal strike. . . ," to the Constitutional indemnization. Furthermore, Article 133, Section IV, under the Fourth Title, Rights and Obligations of the Workers and Employers, Chapter I, Employer Obligations, prohibits employers from forcing their workers through coercion, or any other means to become affiliated with or to withdraw from a labor union or group to which the workers may belong, or to vote for any particular slate.
Please explain how the "exclusionary clause" operates.
The admission and exclusion clauses arise from the CLA or the LC. While the FLL acknowledges their existence in labor contracts, they are optional, i.e., the parties do not have to agree to it. The first paragraph of Article 395 refers to the admission clause, and the second to the exclusion clause. The application, particularly of the exclusion clause has been Constitutionally challenged where it has been viewed as an attempt to circumvent the right of freedom of association, guaranteed by Article 123, Section XVI. In theory, however, application of the exclusion clause, as a security clause, fortifies labor unions under a legal system where union plurality is envisioned under Part "A" of Article 123. The following jurisprudence was issued in 1934 by the Supreme Court:
(1957 Definition) Exclusion Clause: That which binds the employer in allowing only those who are unionized as workers. This clause is legal in collective labor agreements, and any others, which establish privileges in favor of the unionized. It may not be applied in detriment of the workers who are not a part of the contracting union and who are already working in the company at the time the contract is executed. (49)."(30) Compare the above with Article 395: This clause and any others, which establish privileges in their favor, may not be applied in detriment of the workers who are not part of the contracting union and who are already working in the company or establishment prior to the date in which the union requests the celebration or revision of the collective contract and the inclusion in it of the exclusion clause.
Mario de la Cueva explains that the Law of 1931 used the term, "exclusion clause of admission", and that the modification was made because only members of the union were admitted to work, however, once the workers were proposed and admitted to work, the admission clause was executed.(31) The Motives for law explains that Article 395 was modified to change the term, "admission", to avoid plots against labor unions. The clause was to be effective for all workers who were admitted to work after the date in which the CLA, containing the exclusion clause, became effective. Article 395, under Seventh Title, Collective Work Relations, Chapter III, Collective Labor Contract, and Article 413, same Title, Chapter IV, Law-Contract, govern the admission clause. Articles 395, final part, and 371, Section VII, under the same Title, Chapter II, Labor Unions, Federations and Confederations provide for the application of the exclusion clause and the expulsion of union members.
The admission and exclusion clauses contained in Article 395 may be incorporated into the CLA or the LC where the parties agree. Once incorporated into the CLA, however, the employer acquires the obligation to exclusively admit the workers proposed by the labor union with whom it has contracted. Along with this obligation to exclusively admit unionized workers proposed by a labor union, comes the duty to apply the exclusion clause whenever workers resign or are expelled from the union The labor union notifies the employer of the resignations from the union, as well as of the members who have been expelled. The employer's duty to apply the exclusion clause when a member withdraws or is expelled, is limited to dismissal, without having to examine whether it was proper in cases of expulsion. Therefore, when the employer separates a worker in application of the exclusion clause, there is no liability, other than payments to the worker of all remaining amounts owed for the benefits established by Law, such as the portions of unused vacation, overtime and seniority premiums. As Article 48 provides, if during the trial, an employer does not establish the basis for dismissal, the worker has, regardless of the action brought, a right to the payment of lost wages from the date of dismissal to the time when the award is executed. But, where there was an improper application of the exclusion clause on the basis of an incorrect procedure for expulsion, the employer is not liable for lost wages, and can only be ordered to reinstate an improperly dismissed worker.
Notwithstanding the absence of employer liability for dismissal where the exclusion clause is applied improperly, there is a duty to ensure the exclusion clause applies:
In answer to the question of whether the procedure regulated by Article 371, Section VII, followed by the labor union for expulsion of members is also applicable when a member resigns, the Supreme Court rendered the following opinion:
Where the CAB resolves that an exclusion clause has been improperly applied and orders the employer to reinstate the workers notwithstanding the exclusion clause, the Supreme Court issued the following interpretation:
The Statute of Limitations (SOL) applies to the application of the exclusion clause where a worker has resigned from the labor union and the time in which the company may properly separate:
Does the exclusion clause prevent employees covered by a bargaining agreement from joining an independent union and seeking recognition of that union?
Yes. While incorporation of the exclusion clause is not mandatory, it is recognized in a CLA, according to Article 395, where it has been established as part of the negotiations. When incorporated into the CLA, the employer acquires a duty to apply it after notification from the labor union where a member has resigned, as provided by Article 395, final paragraph, or where the member has been expelled from the union, in accordance with the rules in Article 371, Section VII.
The presence of the exclusion clause within a CLA determines whether or not a worker can be separated by an employer as a consequence for membership in or for campaigning activities of another union. Some labor union by-laws may expressly forbid their members to join other labor unions where such act could affect their membership. In such cases, a labor union could initiate expulsion proceedings based on Article 371, Section VII, when a member has violated a prohibition in the by-laws. If expulsion is the sanction to be applied, it would lead to the application of the exclusion clause by the employer, per the final paragraph of Article 395.
However, as stipulated above, if the workers were a two-thirds majority, they could opt to dissolve the labor union per Article 379, Section I, or they could choose to renounce the Board of Directors, and vote for a new one, in accordance with the freedom granted labor unions under Article 371, Section VIII. In any event, it would be impossible for the labor union to apply expulsion proceedings, per Section VII of Article 371, against a majority of workers.
Do situations exist where employers foster, encourage, control or finance a "company" union?
It is important to differentiate between collaboration, authorized by Law, and prohibited labor union-management alliance where the objective is to deprive the workers of their rights, and which has been a serious concern for legislators. There have been some instances involving schemes such as one where the amounts owed to deceased workers' beneficiaries were taken by a company's personnel manager and the union leader. Other cases include a clause in a law-contract which authorized a thirteen percent contribution from the workers' savings fund for a labor union abstract social welfare cause which eventually depleted the fund. As Mr. De Buén points out regarding some disadvantages of the law-contracts, these may be a way for international companies to try to control the larger central unions.(32)
Yet, some of the employer obligations enumerated in Article 132, under the Fourth Title of the FLL, Chapter I, Employer Obligations, could be thought of as collaboration between labor union and management. For instance, employers have an obligation to advise the labor unions when vacancies become available, as stated in Section XI of Article 132. That obligation arises from the admission clause in a CLA authorized by Article 395, and preferential rights found in Articles 154-157 under the same Title, Chapter IV, Preferential Rights, Seniority and Promotion.
If so, is this an accepted practice or has it ever been successfully challenged through the appropriate channels? Why or why not?
Any control by companies over labor unions, aside from what was explained above, is not an acceptable practice. As often commented among labor specialists, the quality of a benefits package obtained by a labor union may be so poor that it may lead you to wonder whether the employer has a certain degree of influence over that particular labor union. The workers, who are directly affected by the CLA negotiations between employer and labor union, rarely bring complaints. Their reluctance, however, can be translated into a fear of losing their jobs which is accentuated by a critical economy.
The workers, through their union representatives, can petition Labor Inspectors, who have a duty to investigate all FLL violations and report them to the appropriate authorities. In addition, the FLL, in Article 1003 under Title Sixteen, Responsibilities and Sanctions, provides that workers, employers and the labor unions, federations and confederations of one another, may denounce violations of labor laws before Labor authorities.
The governing rules and procedures are those contained in the labor union by-laws in accordance with Article 371, Sections V, VI, VII, VIII, IX, X, XI, XII, XIII, XIV and XV of the FLL.
These requirements are reflected in Article 359 which is the essence of union autonomy: This provision expresses that labor unions have a right to establish their own by-laws, to freely elect their representatives, organize their administration, their activities, and formulate their action program.
Article 371 indicates all the information which is to be included in the by-laws: I. Name, distinguishing it from others; II. Address; III. Objective; IV. Duration, which, when omitted, will be understood as undetermined; V. Conditions for Admission; VI. Obligations of the members; VII. Motives and procedures for expulsion and disciplinary measures. In expulsion cases, the following rules are to be observed: a) The assembly of workers are to meet for the purpose of expulsion. b) When it concerns labor unions integrated by sections, the expulsion procedure is to be conducted before the assembly of the corresponding section, but the agreement for expulsion is to be submitted to the workers for decision in each of the sections comprising the labor union. c) The affected workers are to be heard in defense, according to the provisions in the by-laws. d) The assembly is to be aware of the evidence which is to serve as the basis for the proceeding, as well as of the one offered by the affected party. e) The workers are not be represented, nor are they to cast their vote in writing. f) The expulsion is to be approved by the majority of two-thirds of the total members of the labor union. g) The expulsion is only to be decreed for cases expressly consigned in the by-laws, correctly established, and exactly applicable to the case; VIII. The procedure for assembly call, the intervals between ordinary assemblies and the quorum required for sessions. When the Board of Directors does not call a timely planned assembly as established in the by-laws, the workers representing at least two-thirds of the union or of the section may require the Board of Directors to call it, and if during a ten-day term, it does not, the requiring parties may call the assembly, in which case, in order for the assembly to session and adopt resolutions, it will require two-thirds of the total number of members. The resolutions must be adopted by, at least, fifty-one percent of the total of the members of the labor union or of the section; IX. Procedure for the election of the Board of Directors and its number of members; X. Duration of the Board of Directors; XI. Laws for the administration, acquisition and disposal of the property belonging to the labor union estate; XII. Form of payment and amount of labor union dues; XIII. Time for submitting accounts; XIV. Laws for the liquidation of the labor union estate; and XV. The remaining laws approved by the assembly.
When a labor union is registered, it acquires the rights and obligations of fictitious persons with the exceptions provided by Law. Articles 373-375 of the FLL govern the administrative rights and duties. Article 373, unconditionally requires that the Board of Directors disclose complete and detailed information concerning the administration of the union's estate to the assembly at least every six months.
Articles 374 acknowledges labor unions as fictitious persons with judicial capacity to acquire property and real estate for the labor union's immediate and direct use, and to defend their rights and exercise the corresponding actions before all authorities in accordance with Article 375. Article 375 authorizes labor unions to represent their members in the defense of all their corresponding individual rights to directly act or intervene, desisting only when the workers request it from the union.
Article 376 indicates that labor union representation shall be conducted by its Secretary General, or by the person designated by its Board of Directors, except as otherwise established in the by-laws. The members of the Board of Directors who are separated by the employer or who separate on account of the latter, are to continue exercising their functions except as otherwise decided in the by-laws.
The labor union obligations are listed under Article 377. Section I provides that unions must disclose all the information requested from the Labor authorities, as long as it exclusively relates to their function as labor unions. Section II requires unions to inform the authority, under which they are registered, of any changes in their Board of Directors and modifications to their by-laws, attaching a duplicated authorized copy of the corresponding minutes within a ten-day term. Section III, directs unions to inform the same authority every three months, at least, of the membership registration and withdrawals.
Article 378 prohibits labor unions from interfering in religious matters and carrying out commercial activities.
Article 379 indicates that labor unions will dissolve by: I. A two-thirds vote by the members who comprise it; and II. Expiration of the term stipulated in the by-laws.
Where a labor union is dissolved, any remaining union assets are to be applied to whatever the by-laws indicate. When it has not been expressed, the assets are to go to the federation or confederation to which the labor union belongs and, in their absence, to the Mexican Institute for Social Security.
Articles 381-385 of the FLL regulate the conditions under which labor unions may form federations and confederations. Article 381 establishes that labor unions may freely form federations and confederations which will be subject to the regulations in the Chapter, wherever applicable. The members of the federations and confederations may withdraw from them at any time despite any contradicting pact. Article 383 states that the federation and confederation by-laws, in addition to the requirements of Article 371, are to include the following: I. Name and address, as well as those of their constituents; II. The conditions for adhesion of new members; and III. The manner in which their members are to be represented in the Board of Directors and in the assemblies. The federations and confederations register before the STPS, according to Article 384. The last paragraph under Article 366 of the FLL is also applicable to federations and confederations. Article 385 enumerates the requirements to be submitted to the authority, as indicated in 384: I. An authorized copy of the constituting assembly; II. A list with the names and addresses of their members; III. An authorized copy of their by-laws; and IV. An authorized copy of the assembly minutes through which their Board of Directors was elected. The documentation is to be authorized in accordance with Article 365 of the FLL.
The following internal affairs narrative is illustrative, but not inclusive of the contents of the labor union by-laws. As already mentioned, the by-laws are the rules under which the internal affairs of the labor union are governed, as mandated by Article 371, Sections I-XV:
The constituting assembly act is to be executed under the requirements of Articles 356, objective; 360, classification; and 364, minimum number of workers. The Order of the Day customarily includes: constitution of the labor union; discussion and approval, where required, of the by-laws; election of the Executive Committee which is to make up the Board of Directors, as well as the Commission of Vigilance and the Commission of Honor and Justice. The assembly then proceeds to vote and unanimously approve the Order of the Day, and adopts the required resolutions which: a) Constitute, through a unanimous vote, an association of workers. The union is therefore constituted under the by-laws to which others may be adhered and which is to conduct its objectives in accordance with Articles 356, 360, concerning its classification, and 364 regarding the minimum member requirement to register, as well as other governing laws of the FLL. b) Through majority or unanimous voting, approve the by-laws which are attached to the minutes and regulate the constituted labor union. c) Elects the Executive Committee by majority votes with the attributes and functions indicated in the by-laws for a specified period to be indicated. It is comprised of the Secretary General, Secretary of Organization, Secretary of Minutes, Secretary Treasurer, Secretary of Labor and Conflicts, and Secretary of the Exterior. IV. Elects the members of the Commission of Vigilance by majority votes for the time specified, as indicated, which is to have the attributes and functions described in the by-laws. V. Elects the members of the Commission of Honor and Justice by majority votes for the specified period, which is to have the attributes and functions also described in the by-laws. Immediately following the above, the President of the Board of Debates invites the persons who have been elected to their posts to an oath-taking ceremony through which they manifest their acceptance and are sworn-in. After this act is concluded, it is signed by the registrar, the members of the Board of Debates, the Executive Committee, and other participants wishing to do so.
The labor union has the freedom to stipulate, in accordance with the governing laws to which they are subject, all the conditions under which it is to manage its internal labor affairs. Usually, the first chapter of the by-laws is dedicated to the name, address, objective, per Article 356, and its duration.
Chapter II of the by-laws will generally contain the rules regarding the associates, their rights and obligations. This chapter establishes the conditions for membership which requires being over age fourteen, and not having any legal impediments which could restrict membership. Covered here are also the legal limitations to membership in accordance with Articles 9, 11 and 183, and other laws under the FLL, pertaining to trust employees. Admission is subject to approval by the Executive Committee, in accordance with the candidate's application where the prospective member promises strict adherence and obedience to the by-laws and the assembly decisions. In addition, the application for admission needs to be recommended by two union members who will attest to the candidate's background. The member's admission is not subject to any discrimination based on sex, nationality, political or religious ideals.
After admission, the members acquire the following rights: I. To participate in assemblies with the right to vote and express opinions; II. To be elected to the Board of Directors and to commission positions within the labor union after age sixteen; III. To be represented in the defense of individual labor rights with the right to request that the labor union desist from intervening on their behalf, in accordance with Article 375 of the FLL. IV. A right to all the economical and social benefits which the labor union grants its members. V. A right to be proposed to a job for the first time, without affecting the rights of those who are already working. When there are several workers competing for the same position, the labor union is to prefer, under equal circumstances, those workers who are Mexican, as opposed to those who are not, those who are have previously and satisfactorily worked for the company for a longer period, those who, while not having any other source of income, have a dependent family, and those who are unionized, as opposed to those who are not. The latter section refers to the preferential rights of Article 154. When the position requires training and advancement, the provisions in Article 159 will apply with the condition that the worker who fills the vacancy, must become a member of the union in application of the admission clause, where established in the collective contract, in accordance with Article 395.
Normally, the obligations of members of the union include payment of their union dues, as established by Law; punctual attendance at and participation in assemblies with due composure; acceptance and dutiful realization of the union positions to which they may be designated, except where there is some justified impediment. Members are also required to carry their union identification cards and disclose them whenever required to do so by the union. They are required to act in accordance with the agreements and the projects adopted by the assemblies and the Board of Directors.
The assemblies are the decision making organ of labor unions whose resolutions, along with the autonomy granted by the FLL, regulate the union's internal affairs. As specified, above, under labor union obligations, the labor union must through its Board of Directors, render a complete and detailed account of its estate at least every six months. The by-laws are to determine the place and the dates in which the assemblies are to meet, as well as their purpose. There are to be ordinary and extraordinary assemblies.
Ordinary assemblies cover the state of accounts by the Executive Committee, administration of funds and other property which is part of the labor union estate. They also come together for the Report by the Executive Committee on new admissions for approval by the assembly, as well as on withdrawals.
The following are examples of the matters to be decided during extraordinary assemblies: I. Appointment of the Executive Board, as well as of the commissions for Vigilance, and Honor and Justice. II. Matters concerning the suspension of union rights. III. Matters concerning union position removals. IV. Matters involving the resolutions over the expulsion of members, which require a special assembly, as provided in Section VII of Article 371. V. Matters involving union fee increases. VI. Acquisitions and sale of real estate owned by the labor union which is immediately and directly related to the objectives of the labor union. VII. Matters involving any modification to the by-laws. VIII. Matters regarding the dissolution of the labor union, in which case, the members are to assemble exclusively for that purpose. IX. Any other matters required by the circumstances.
The by-laws are to indicate the required quorum which is fifty one percent of the members, as mentioned in Article 371, Section VIII, final paragraph. This percentage does not apply to the cases involving expulsion of members, modifications of the by-laws, acquisition or sale of union real estate, increases in union fees, the dissolution of the labor union, or those convoked by the workers who represent thirty-three percent of the total of members of the labor union when the Board of Directors has not done so according to the same article and section just mentioned. In such cases, it will be necessary for two-thirds of the workers to attend, with the understanding that any of the issues to be voted on, are to be approved by the majority of the two-thirds of the total number of members.
Assemblies are to be convoked by the Secretary General with advance notification as established in the by-laws. The notification is to specify the date and place of the assembly, and the matters to be decided. As mentioned, when the Board of Directors fails to convoke according to the by-laws, thirty-three percent of the workers may require the Board of Directors to do so. If after a ten-day period, it persists in its failure to convoke, the petitioners may call an assembly, but in order to session and adopt resolutions, at least two-thirds of the total members of the union must attend.
All of the assembly votes shall be individual and direct and may be conducted through a nominal vote, or economically, by raising an arm, or by secret voting through ballots, but the number of resulting votes shall be accurately recorded in the minutes, except where it involves a modification of the by-laws, an acquisition of real estate, the increase of union fees, the expulsion of members from the union or the dissolution of such, where the voting shall be nominal and direct with a certification of the signature of those who voted and the way in which they voted.
The voting process for the Board of Directors, and the Commissions of Vigilance, and Honor and Justice is direct and secret. Once conducted, the President of the Board of Debates declares the voting closed and cancels all remaining unused ballots recording them in the minutes. The registrars recount the votes in the presence of the Board of Debates and the representatives of the registered slates. The president of the Board of Debates announces the results.
Are officers, representatives and delegates required to be elected by the membership? If so, is a secret ballot required? Who is eligible to seek union office? What are the requirements relating to election campaigns, including the distribution of campaign literature? How may officers be removed from office?
The answers to the first three questions are provided above. The answer to the fourth question depends on the type of election campaign. Where there is a campaign to support a labor union competing for the CLA, the procedure was explained in the answer to Question 1. Article 135, Section X, under the Fourth Title, Worker and Employer Rights and Obligations, Chapter II, Worker Obligations, prohibits the worker from conducting any type of campaigning during the hours of work at the workplace. This includes the distribution of campaign literature inside the work premises. Please see answer to Question 3, for further discussion.
As indicated above under "Assemblies", labor union officers may, generally, be removed from office through an extraordinary assembly which is to resolve removal from a union position through a fifty-one percent vote of the total number of members.(34) Removal from office is, next to expulsion, a very serious sanction. Its procedure is followed through the Commissions of Vigilance, and the Commission of Honor and Justice.
The Commission is formed by one President, a Secretary and several commission members. The Commission is responsible for ensuring that the labor union by-laws and the assembly resolutions are observed and strictly adhered to by the labor union officers and members. Usually, the Executive Committee or the members can bring charges for non-compliance of the by-laws or the assembly resolutions. When this happens, the Commission of Vigilance conducts an investigation which includes listening to and receiving the evidence established by the accusers, as well as receiving evidence from the accused, providing an opportunity to be heard. The Commission will also verify the data and any evidence it has available. Afterward, its observations, recommendations and conclusions are reported to the Executive Committee within a specified period provided in the by-laws which is starts to count from the time it received the matter for investigation. The report is later turned over to the assembly which is to convoke within a specified time to resolve the matter.
The commission is also constituted by a President, a Secretary and several commission members. It handles the charges involving any member of the labor union brought by the Executive Committee or members of the union. It investigates any acts which go against union integrity, moral issues, or ethics. The Commission summons the accused and indicates the charges. It allows the accused an opportunity to be heard and to establish favorable evidence. During the same act, the Commission also receives the evidence against the accused. The Commission verifies any information and evidence at its disposal, and within a specified time submits a report with its finding to the Executive Committee. The Executive Committee forwards the report to the assembly which is convoked within a specified time for resolution.
The following sanctions may be applied to any of the members who disobey the by-laws or the assembly resolutions, according to the significance of the action: The first, is a written warning. The second, a suspension of union rights. The third sanction is the removal from office, and the final one involves expulsion.
Warnings can apply to cases where a member has been late to assemblies, has failed to attend assemblies, or for misconduct in them.
Suspension of union rights can be applied for recurring episodes, unjustified failure to pay union dues which, if persistent, may lead to a permanent denial of member rights, unjustified failure to carry-out a labor union assignment delegated by the Executive Committee or by the assembly, and for serious disciplinary acts or those which are contrary to union solidarity.
Removal from office can apply for violations to the union by-laws and regulatory agreements of the assembly or of the Executive Commission; for a lack of honesty in managing union funds or in the role of representation; for exceeding the limitations of authority functions; or any other similar acts committed in detriment of the labor union and its members. Removal from office does not necessarily imply loss of membership rights, although it may also be applicable according to the extent of the offense.
Warnings are to be applied by the Executive Committee through a written document to the workers in which they are notified that certification of such is being placed in the union files, but approval of must be voted through the assembly where the accused shall be heard.
Suspensions and removal from office are decreed by the assembly; however, when the integrity of the labor union is at risk, the Executive Committee may apply it immediately. The assembly, however, is to ultimately vote on the issue, granting the accused an opportunity to be heard.
Finally, expulsion as a sanction from the labor union is to be applicable for dividing the members; for inappropriately representing the labor union; for having entered into agreements with a company, or negotiating deals contrary to the interests of the workers; for serious disloyal acts against the labor union which risk the organization's integrity, in both inter-trade and worker employer relations; by an act of physical aggression or defamation against the labor union directors or commissioners; by instigating unrest or misconduct through planning of matters which do not concern the labor union, and if they do, when procedures are applied which reveal an intent to destroy the labor union; for committing fraudulent acts in detriment of the labor union and its members; for repeated immoral or antisocial acts which affect the prestige or the morality of the labor union; for joining another union when the act affects the professional interests represented by the organization or its integrity.
For the expulsion to be valid, the worker must appear before the Commission of Honor and Justice where the charges are made known, the member is heard, and any favorable evidence received. At that time the evidence against the member is received and the Commission proceeds to verify the data and available evidence. The Commission delivers its decision within a time frame specified in the by-laws, and forwards the report to the Executive Committee. The Executive Committee, through the Secretary General convokes the members. The dates and times of assembly are to fall within a period mentioned in the by-laws which starts to count from the time the report was received. The assembly is to be held for expulsion purposes only, where the decision of the Commission is read. The evidence offered is made known, and the accused is granted an opportunity to be heard, and make use of any evidence and defenses. When an expulsion applies, it requires the approval of two-thirds of the total number of members who are to vote nominally and directly. The voting is recorded in the assembly minutes with information on who attended and the way in which the issue was voted. The signature of each voting member is also required. The expulsion is carried out under the terms of Article 371, Section VII.
What legal remedies are available to workers who claim that an employer or a union is interfering with their right of freedom of association or right to organize? For example, what remedies are available to challenge a dismissal from employment?
As discussed in the answer to Question 1, under "Employees Seeking to Obtain Representation by a Different Union", when a worker is dismissed in retaliation for exercising the freedom of association or the right to organize, the employer is in violation of both Sections XVI and XXII of Article 123 of the Constitution, and Article 358. Article 123, Section XXII, specifically addresses the impropriety of dismissing workers for exercising the right of freedom of association or the right to organize. At the same time, it sanctions an employer who violates the provision with the Constitutional indemnization, described below.
Article 48 provides the basis for unjustified dismissals where the worker may petition the CAB, and choose between reinstatement, or a three-month indemnization. If in the corresponding trial, the employer does not prove the grounds for the rescission, the worker will have a right to, aside from whatever action is brought, lost wages from the date of dismissal through the date of execution of the award. In addition to the choice that the worker has between reinstatement or indemnization, Article 49 provides that an employer is exonerated from the obligation to reinstate the worker if the worker is indemnified as indicated in Article 50, under the following conditions: I. When the workers have a job seniority of less than one year; II. When the employer proves to the Board that due to the type of work performed by the worker, or to the nature of the work, the employer is in direct and permanent contact with the worker, and the Board considers, taking the circumstances of the case into account, that a normal work relation cannot be had under such conditions; III. In the case of trust workers; IV. In domestic services; and V. When it involves temporary workers. Article 50 covers the indemnization referred to in Article 49: I. If the work relation was for a specified period which lasted less than one year, in equal quantity to the salary amount of one half the time of the work performed; if it exceeded one year, in an equal quantity to the salary amount of six months for the first year, and of twenty days for every one of the following years of work performed; II When the work relation was for an unspecified period, the indemnization consists of twenty days of salary for every year of work performed; and III. In addition to the indemnization specified by Sections I and II, it is to consist of three months' salary and lost wages from the time of dismissal through the time the indemnization is paid.
If, according to Article 48, a worker opts for the Constitutional indemnization, as opposed to reinstatement, beside lost wages, the worker should ask for payment of any overtime hours not previously paid by the employer. In addition, the worker is entitled to the payment of the legal benefits for: vacation, in accordance with Articles 76-81, under the Third Title, Work Conditions, Chapter IV, Vacations; an annual bonus per Articles 84 and 87, same Title, Chapter V, Salaries; and a seniority premium according to Article 162, Fourth Title, Rights and Obligations of the Workers and Employers, Chapter IV, Preferential Rights, Seniority and Promotion, for individual contracts, and Articles 436 and 439, under the Seventh Title, Chapter VIII, Collective Termination of the Work Relations, for CLAs. In the labor suit, the worker should also ask that payment be made for any other extra-legal benefits due.
Article 84 expresses that the salary comprises the cash payments based on a daily rate, and other than cash payments which include awards, collections, lodging, premiums, commissions, and benefits in kind, plus any other amount or benefit given the worker for the work performed. Trueba Urbina notes that although the right of workers to share in the company's profits may be considered an integrating factor of salary, Article 129, under the Third Title, Work Conditions, Chapter VIII, Workers Participation in Company Profits, excludes it from the base salary to be computed for the purposes of indemnization. However, besides the cash payments and other than cash payments made, the five-percent regular salary contributions made by the employers to INFONAVIT (National Institute for the Workers Housing Fund) is to be included as salary, according to Article 136, (Fourth Title, Rights and Obligations of the Workers, Chapter III, Lodging of Workers.(35)
Article 123, Section XXII, as already indicated is the Constitutional basis for actions brought before the CABs as unjustified dismissals, and for rescissory actions supported by Article 51. Where several actions are brought under Section XXII, they have been considered to be contradictory actions.(36) But the following jurisprudence thesis explains when they are not:
Article 784, under Title XIV, Procedural Labor Law, Chapter XII, Evidence, First Section, General Rules, exonerates the worker from bearing the burden of proof when the Board has the possibility of establishing the facts through other means, and in order to do so, requires the employer to disclose the documents which, under Law, are supposed to be kept in the company, cautioning that if they are not provided, the worker's statement of facts will be presumed true. In any case, the employer must prove the claims when there is controversy over: I. Date of employment; II. Length of Employment; III. Absences, IV. Cause for the Rescission of the work relation; V. Termination of the work or contract relation for specific task, or duration, under the terms of articles 37, Section I and 53, Section III of this Law; VI. Proof of having notified the worker in writing of the date and reason for dismissal; VII. The labor contract; VIII. The duration of the work schedule; IX. Payment of the days of rest and legal holidays; X. Vacations granted and paid; XI. Payment of the Sunday, vacation, and seniority premiums; XII. Amount and payment of salary; XIII. Payment of the workers' shares in company profits; XIV. Incorporation and contributions to the National Housing Fund.
There are exceptions to the employer burden of proof, particularly in cases where the courts consider that the employer's denial of dismissing the worker and offering reinstatement is done in good faith:
Articles 516-522, under the Tenth Title, Prescription, cover the time fixed by law within which workers can bring actions. The SOL is widely used as a defense in labor matters. As such it can only be invoked by the parties who tend to be favored by it, i.e., if none of the parties use it as a defense to the proposed action, it is not imposed by operation of law. Article 516 provides that the SOL is generally for one year and starts to run the day following the date when the obligations arise. The exceptions to Article 516 are comprised in Articles 517-519:
-One month- To rescind the work relation through dismissal in accordance with Article 47, without liability; to make deductions from salaries; and apply disciplinary measures stemming from the Internal Work Regulation (IWR). (Article 517, I) The SOL runs from the day following the date in which the cause for rescission was notified or, if for misconduct, from the moment in which the errors made can be verified or the losses or damages can be attributed to the worker, or from the date in which the debt becomes due.(Article 517)
-One month-For actions to separate from work, from the date in which the cause for separations is made known.(Article 517)
-Two months-For actions by workers who are separated from their work. It runs from the day following the date of separation. (Article 518)
-Two years-The actions by workers to claim payment of indemnization for occupational injuries; the actions by the beneficiaries in the cases of death due to work injuries; and the actions to ask for the execution of awards from the CABs, and for agreements executed before them. The SOL runs, accordingly, from the moment in which the extent of disability from work is established; from the date of the worker's death, and from the day following that in which the award was notified or the agreement approved. Where the award consists of the obligation to reinstate, the employer may ask the Board to set a term not longer than thirty days in which to return to work, cautioning a worker that failure to do so, allows an employer to end the work relation. (Article 519) The SOL cannot run against the mentally handicapped until their guardianship has been discerned according to Law; and against the workers incorporated into the military during time of war.(Article 520)
The SOL is interrupted: By the presentation of the suit or by any promotion before the CB or the CAB regardless of the date of the notification. If the Board has no jurisdiction over the matter, it will not be an obstacle to interrupt the SOL; nor will it be if the person who is being favored by the SOL recognizes the right of the other against whom it is running, verbally, in writing, or by unequivocal facts. (Article 521) For SOL purposes, the months shall be determined according to their number of days. The first day will count as a whole day, even where it may not be, but the last day is to be considered a whole day and, if it falls on a holiday, the SOL is not be regarded as complete until the first following day has passed.
The following thesis is important in that the SOL two-month term does not apply for actions brought to annul and void the differences in payment of benefits as it does in actions for unjustified dismissal:
Contents of a Legal Suit for Unjustified Dismissal:
When an employer dismisses workers, they can sue the company, individually, and seek reinstatement, or indemnization. Generally, a suit can start with the request regarding the Constitutional indemnization and lost wages, overtime due, vacations, annual bonuses, and seniority premiums. The statement of facts portion of the suit should also mention whether or not notice was given in writing as required by Article 47. Also stated in this part is the information regarding the work conditions, i.e., the position assigned, the work schedule and the days of rest, starting salary and final salary, as well as any other benefits the worker is entitled to receive. Again, in the statements of facts, the Constitutional indemnization and lost wages should be requested. The worker should also state any changes in the work conditions, i.e., normal hours which were extended to overtime, or days of rest which were worked, and stipulate the amounts due, if any, for the overtime exceeding the legal limits and days worked during the rest days, or legal holidays. Any unpaid vacations, annual bonuses, and seniority premiums due will have to be covered here also. The last part of the suit, is reserved for indications regarding the appropriate CAB jurisdiction, the Constitutional foundation and the Law on which the worker claims the right, and on the procedural laws governing the action. The suit concludes with the relief requested, and signature.
What legal remedies are available to workers who claim that an employer or a union is interfering with their right of freedom of association or right to organize? For example what remedies are available to challenge a demotion, suspension or similar action?
The FLL does not contemplate demotions. In theory, the Law provides for the advancement of workers in consistency with the requirement that labor unions state their objective according to Article 356, under the Seventh Title, Collective Work Relations, Chapter, II, Labor Unions, Federations and Confederations, which is to study, advance, and defend their respective interest so that they may be granted registration. One of the most of important reasons for this is that the FLL is the regulator of the substantive laws which vindicate past labor injustices. Article 2, under the First Title, General Principles, expresses: "The labor laws tend to procure equality and social justice in the relations between workers and employers." Much has been said about equality and social justice, and still, according to Trueba Urbina, the FLL is incomplete because its laws only refer to an idea of social justice with a tendency toward balancing and protecting, which he says, should follow the ideals of Article 123 in which the object is not only for workers to attain the dignity of human persons and advancement of their economic conditions, but the vindication of rights of the working class which tend to socialize production goods.(37)
The Internal Work Regulation (IWR)
Chapter V of the Seventh Title provides for an Internal Work Regulation under Articles 422 - 425. The IWR is a set of rules which complements the CLA, or the LC. It is also advisable that an IWR also be established in individual labor contracts.
The obligation to distribute the IWR to the workers and to post it in highly-visible places at the workplace is mandated by Article 425. Modification of the IWR is generally limited to amending omissions in the regulation, or revising any provisions contrary to the Labor Law and to other labor principles, per Article 424, Section IV.
The breaking of one of the rules deriving strictly from an IWR would justify a work suspension. The IWRs are based on the obligations and prohibitions of the workers, found in the FLL under the Fourth Title: Rights and Obligations of the Workers and Employers, Chapter II, Worker Obligations. Article 134, Sections I-XIII, outlines the obligations, while Article 135, Sections I-IX, describes the prohibitions. Absent, an IWR, consider the following interpretation and jurisprudence:
If an IWR has been established, as is normally the case when there is a CLA, the disciplinary action is based on the rule stipulated in the IWR. Article 423, Section X., also stipulates that before any disciplinary action is applied, the worker must be heard.
What legal remedies are available to workers who claim that an employer or a union is interfering with their right of freedom of association or right to organize? For example, what remedies are available to challenge an employer policy or action, such as prohibiting the distribution of union organizing leaflets or material or threatening workers with punishment for union activities, that has not resulted in a dismissal, demotion, suspension, or similar action?
Article 135, Section X, under the Fourth Title, Rights and Obligations of the Workers and Employers, Chapter II, Worker Obligations, forbids workers to conduct any campaign activities during the hours of work at the workplace.
Article 133, Section IV, under Fourth Title, Employer Rights and Obligations, prohibits employers from forcing workers through coercion or any other means to become a member or withdraw from a union or a group to which they belong, or to vote for a particular slate. Section V forbids the employer to interfere, in any way, in internal labor union affairs. Section VII. prohibits any act which will restrict the rights provided by Law of the workers.
The text in Article 133, Section IV, is clear, and applies to violations where an employer uses coercion or "other means" to refrain workers from exercising their freedom of association or right to organize. The phrase used in Section IV lends itself to a broad interpretation, where any action by an employer, manifested through intimidation of the workers even during a recount proceeding which management officials may observe, violates the freedom of association and right to organize. "Other means" may include an employer's response in retaliation against the workers, who join a union or who support one.
What legal remedies are available to workers who claim that an employer or a union is interfering with their right of freedom of association or right to organize? For example, what remedies are available to challenge a recognized union's interference with efforts to establish an independent union?
As explained earlier, if the new independent labor union has the support of the majority of workers, a new labor union can be integrated once two-thirds of the worker members vote for the old union's dissolution, per Article 379. In accordance with Article 388, Section III, if trade labor unions and company or industry labor unions compete for control over a CLA, the first will be able to enter into a CLA within their specialty, as long as the number of members is higher than the one for the company or industry labor union. However, if during the life of the CLA, its holder loses the majority, as indicated by Article 389 of the FLL, the loss of a majority, declared by the Board shall mean a loss of control over the CLA.
With respect to the matters set out in Question 3, what legal remedies are available to a union acting on behalf of its members? Is registration of the union required in order to pursue any remedies? Is recognition required?
As mentioned earlier, the following are available remedies:
Dismissal from employment:
The labor union representing a worker who has been unjustly dismissed can bring suit in his name, in accordance with Article 375. The worker may ask the labor union to stop intervening, when the worker feels it is in the best interest do so. The labor union may require assistance from the Office of the Procurator of Labor Defense to challenge an unjustified dismissal.
At times, however, the CLA may indicate that separation from work is necessary in situations where the company is forced to reduce the number of workers for economic reasons. The labor union must ensure that the work rescission is in accordance with Articles 50, Sections II and III, and 162, payment of the seniority premium, and in conjunction with Article 34, Section III, concerning agreements between labor union and employer when there is a need for a work reduction which should be done in conjunction with Article 437. Article 437 stipulates that when a reduction of the work force is to take place, it should be done following the order of the seniority roster.
Suspension from work:
Depending on whether there is an Internal Work Regulation which specifies a disciplinary measure for violations to the Regulation, the labor union should also represent the worker when a disciplinary measure is incorrectly applied, as discussed above.
An employer policy or action such as prohibiting the distribution of union organizing leaflets or material or threatening workers with punishment for union activities that has not resulted in a dismissal, demotion, suspension, or similar action:
If a worker violates Article 135, Section X, which prohibits any type of campaign activity in the workplace during the hours of work, the worker may be penalized by the employer through application of a disciplinary measure from the IWR.
As will be discussed, the Labor Inspectors can be petitioned to investigate employers who violate Article 133, Sections IV and V. The Inspectors have an obligation to report these infractions to the Labor authorities, as part of their overall functions and obligations per Article 541. Violations reported to the authorities by the Labor Inspectors could subject an employer to a sanction specified in Article 994, under Title Sixteen, Liability and Sanctions, for violations to Article 133, Section IV, of 15 to 155 times the general minimum salary. For violations to Section V, the general sanction found in Article 1002, imposes a monetary sanction of from 3 to 155 times the general minimum salary. If the employer is found to have also violated Section VII, which forbids the employer to carry out any act which infringes upon the rights of the workers granted by Law, the sanction in Article 994 is also applicable.
What legal remedies are available to workers who claim that an employer or a union is interfering with their right of freedom of association or right to organize? For example, what remedies are available to challenge a recognized union's interference with efforts to establish an independent union?
As specified in the answer to Question 1 above, a labor union can establish the majority through the Special Procedure, through which it may become holder of the CLA.
Yes, as explained previously in the answer to Question 1.
A legally registered labor union, holder of a CLA, may petition the employer for execution of a CLA. However, where the labor union has not been recognized by the employer, due to the labor union's failure to hold the CLA, the employer cannot be forced to enter into one, unless that labor union has been declared to have a majority of workers through the procedure established in Articles 892-899, and after the CAB has declared the majority loss of the holder of the CLA. Where a labor union is not registered, it is merely a coalition in terms of exercising a right to strike, per article 440 in the chapter for Strikes. Therefore, if it has not been legally constituted, and a strike voted in an assembly for such purpose, it lacks judicial recognition.(38)
Although Article 357 provides that workers and employers have a right to constitute unions without requiring prior authorization, a union cannot be recognized, i.e., given its judicial capacity until it has been registered in accordance with the terms of Article 365 of the FLL. Absent a registration, the union will not be able to legally represent workers or compete for a CLA. Once a union and its Board of Directors are registered by the STPS, or the local CABs, Article 368 expresses that the registration enables a union to have the necessary judicial effects for recognition.
Where an election is held to determine whether the employees desire representation by a union seeking recognition by the employer, does the appropriate CAB have jurisdiction over complaints involving interference with the electoral process?
Yes. If the elections refer to the majority situations explained above at Question 1, where several unions compete for control over the CLA, they will be subject to the Special Proceedings covered under Articles 892-899. The Board is to declare the loss of majority which means the loss of the CLA, per Article 389. Article 895, Section III, establishes that if the recount of workers is offered as evidence to establish the majority, the rules of Article 931 will be followed. Article 931, Section V, provides that if there are objections to the recount, these are to be done at the time of the recount, in which case, the Board is to summon the parties to a hearing for offer and introduction of evidence.
What remedies are provided for noncomformance with established rules or procedures governing conduct of internal union affairs, including the election of union officers?
The remedies for non-conformance with established rules or procedures governing the conduct of internal union affairs are those established in the by-laws. The authority in charge of investigating these matters could be the labor union's Commission of Justice and Honor. Please see answer to Question 2.
What remedies are provided for employer interference with such rules or procedures?
As stated above, the employer is prohibited from interfering in any internal labor affairs whatsoever, in accordance with Article 133, Section V. The same sanctions apply.
May the Registrar of Associations take remedial action?
Where the matter is under federal jurisdiction, the Registrar of Professional Associations of the STPS ensures that the labor unions comply with their by-laws and their CLAs. In the case of local jurisdiction, the matters may be brought to the attention of the local CAB, without excluding the attributes of the Labor Inspection.
Article 377 requires that the labor unions provide the information required by the labor authorities as long as it pertains to their conduct as labor unions, per Section I. Labor unions must also communicate all changes in the Board of Directors, and the modifications of the union by-laws, according to Section II. They also must inform the STPS or the CAB of all their membership admissions and withdrawals. Through this information, the labor unions are being kept under check in terms of their social function. If, at any time, such organization is not considered to meet the objectives specified for their registration, found in Article 356, the labor union's registration could be ordered canceled, in accordance with Article 369.
Describe the scope of authority of labor inspectors under Title XI, Chapter 5 of the FLL. Do Labor inspectors have jurisdiction to investigate complaints involving freedom of association and the right to organize? If so, do they commonly exercise that authority?
Labor Inspectors are Labor authorities whose functions, obligations and faculties are regulated under Title Eleven, Labor Authorities and Social Services, Chapter V, Articles 540-550.
Article 540 describes their functions as follow: I. To ensure compliance of labor laws; II. To provide access to technical information and advise for the workers and employers on the most effective ways of complying with labor laws; III. To inform authorities concerning deficiencies and violations to labor laws which they observe in the companies and establishments; IV. To conduct the studies and furnish the data required by authorities, as well as those which they deem appropriate to obtain harmony within the relations between workers and employers; and V. Any others conferred by the laws.
Trueba Urbina comments that the Labor Inspectors are either federal or local administrative authorities who have a duty to watch over labor agreements, the law and its regulations. He claims that they have a very important social function which, unfortunately does not always reach its potential because their activities are limited to a routine of issuing citations for infractions.(39) However, he points out that although the Labor Inspectors' principal functions are covered in Chapter V, they have additional faculties established throughout the FLL. One of their most important attributes is in the area of workers' shares in company profits. Here, the Labor Inspectors function is not one of ensuring compliance with the laws, but a jurisdictional duty(40) consisting in determining the amounts of money to be distributed to each worker when the commissions established by workers and employers have not been able to agree. (Article 125, Section II.)
Obligations and Faculties:
Article 541 provides both obligations and faculties: I. To ensure compliance of the labor laws, especially those which establish the rights and obligations of the workers and employers, of those which regulate the work of women and children, and the ones which determine the safety measures for work hazards, occupational safety, and hygiene; II. Visit companies and establishments during the day and night shifts, provided they adequately identify themselves; III. Question the workers and employers in private, or in the presence of witnesses over any matter related to the application of labor laws; IV. Demand disclosure of books, registers or other documents which are required by the labor laws; V. Suggest that violations or work conditions be corrected; VI. Suggest that the defects verified in the installations and work methods be eliminated when such constitute a labor law violation, or a hazard to the safety and health of the workers, and insist on the adoption of measures for immediate application where there is an imminent danger; VII. Examine the substances and materials used in the companies or establishments where dangerous work is undertaken; and VIII. Any others conferred by the laws. Labor Inspectors are to promptly fulfill the instructions received from their ranking superiors in the exercise of their functions.
Article 542 stipulates the following: I. To correctly identify themselves showing workers and employers their properly authorized identification cards; II. To periodically inspect companies and establishments; III. To perform extraordinary inspections when they are required by their superiors to do so or when they receive a complaint regarding a labor law violation; IV. To issue a report on every inspection performed with the intervention of the workers and the employer, recording the deficiencies and violations to the labor laws, and providing each of the parties with a copy, and forwarding the report to the corresponding authority; and V. Any others imposed by the laws.
Article 543 states that the facts certified by the Labor Inspectors are to be unquestionable unless the contrary can be established.. Trueba Urbina makes an indication that the Inspectors' Reports are considered to be of great judicial value and that they manifest clear evidence; therefore it is important to obtain the workers' and employer's signature when they intervene in the Report write-up.(41)
Article 544 establishes the prohibitions for Labor Inspectors as: I. Having direct or indirect interest in the companies or establishments subject to inspections; II. Revealing industrial or commercial secrets and the procedures for manufacturing or exploitation which they can come across through their functions; and III. Representing or sponsoring workers or employers in labor conflicts.
The Office of Labor Inspection is made up by a General Director and the number of Inspectors, men and women, deemed necessary to accomplish the functions mentioned in Article 540. The appointments are made by the STPS, or the Local Governments.
Labor Inspector Requirements:
Labor Inspectors must meet the requirements of Article 546, as follow: I. Must be Mexican, of legal age, and in full exercise of their rights; II. Have completed a secondary education; III. Must not be members of worker or employer organizations; IV. Demonstrate satisfactory skills in labor law and social welfare and have adequate technical preparation to carry out the functions; V. Must not be members of the ecclesiastic state; and VI. Must not have been convicted for an intentional crime sanctioned by imprisonment.
Article 547 defines the special cases of liability to which the Labor Inspectors are subject: I. Failure to perform the inspections referred to by Article 542, Sections II and III; II. Writing false statements in the reports they issue; III. Violations of the prohibitions referred to by Article 544. IV. Directly or indirectly accepting gratuities from the workers or the employers; V. Failure to comply with the orders issued by their ranking superiors; and VI. Failure to report to the Public Minister, an employer from an industrial, agricultural, mining, commercial or services enterprise who omits to pay, or has omitted to pay the general minimum salary to a worker at his or her service.
Article 548 establishes the following sanctions for Labor Inspectors, notwithstanding the application of other sanctions imposed by the penal laws: I. Warning; II. Up to three months' work suspension; III. Discharge.
In application of the above sanctions, the following rules are to be observed, according to Article 549: I. The General Director must carry out an investigative hearing with the interested party; II. The General Director applies the sanctions indicated by Article 548, Sections I and II; and III. When the General Director considers that discharge is warranted, it must notify the STPS, the Governor of the State or the Chief of the Department of the Federal District, and obtain their decision.
Article 550 establishes that the regulations will determine the attributes, the manner in which it is to perform, and the obligations of Labor Inspection.
In addition to the Labor Inspectors, the Office of the Procurator for Labor Defense also plays an important role in securing compliance of labor laws by procuring the representation before the CABs and all other pertinent authorities of the labor unions and their members.
Article 530 provides the functions of the OPLD, under Chapter III, Title Eleven: I. To represent or advise workers and their labor unions, upon request, before any authority on the issue related to the application of labor laws; II. Promote the ordinary and extraordinary available recourses in the defense of the worker or labor union; and III. Propose friendly solutions to the interested parties and certify the results in authorized reports.
The OPLD shall be formed by the Procurator General and by the number of Auxiliary Procurators deemed necessary for the defense of workers' interests. The appointments are made by the STPS, by the State Governors, or by the Chief of the Department of the Federal District.
Article 532 requires that the Procurator General: I. Be Mexican, of legal age and in full exercise of his or her rights; II. Have a legally-issued degree in Law with practice in the profession not to be under three years; III. Have specialized in Labor Law and social welfare; IV. Not belong to the ecclesiastical state; and V. Not have been convicted for an intentional crime sanctioned by imprisonment.
Article 533 establishes that the Auxiliary Procurators are to satisfy the requirements indicated in Sections I, IV and V of the previous article and must have finished the equivalent of at least the third year, or the sixth semester of Law school.
Article 534 provides that the services by the OPLD are gratuitous. The authorities have a duty to provide the OPLD with the data and information required to carry out its work, per Article 535. Article 536 indicates that the regulations will determine the attributes, the manner in which it is to perform and the duties of the OPLD.
The amparo is a Constitutional process designed to establish federal jurisdiction over any controversies that arise from laws or acts of authority which violate individual rights. It protects from violations committed where a governmental authority applies a law which is not in itself prejudicial, but for an act of authority, or acts or actions by authorities, or judicial resolutions which in any way deprive an individual or individuals, collectively, from exercising constitutional rights. Trueba Urbina comments that although the Regulation of Constitutional Articles 103 and 107 found in the Amparo Law refer to the amparo as a trial, he feels it is not either a recourse or a trial, but a process, as was clarified by the Motives for Law of the Federal Code for Civil Procedures of 1897.(43)
The Constitutional basis derives from Article 14, first paragraph, where, as an individual guarantee, "No one can be deprived from their possessions or rights, other than through a trial followed by previously instituted tribunals in which the essential formalities of the procedure are observed and in accordance with laws which have been expedited prior to the occurrence." Article 16, first paragraph, first sentence, reads, "No one can be disturbed in their person, family, residence, papers or possessions, unless it is by virtue of a written order from the jurisdictional authority who is to found and justify the legal cause for the proceeding. These articles are the essence of due process and the legal foundation of the amparo. Therefore, the principal objectives of the amparo are to regulate compliance of all individual guarantees in the Constitution, and to regulate the guarantee of legality. Consequently, legality is obtained through the spontaneous concurrence of Article 14 of the Constitution which provides a guarantee of accurate judicial interpretation of the law and Constitutional Article 16 which secures judicial certainty.(44)
The Amparo judgment is governed by Constitutional Articles 103 and 107: Constitutional Article 103, Section I, mandates that Federation tribunals shall resolve all controversies arising from laws or acts of authority which violate individual guarantees. Section I, is therefore providing the substantive right for individuals to come before the Judicial Power of the Nation to seek relief from laws or actions which deprive them of their constitutional guarantees. Section II. confers federal jurisdiction over federal laws or acts by federal authority which infringe upon or restrict the sovereignty of the States. Conversely, section III, provides the federal tribunals power to resolve controversies arising from State laws or acts by State authorities which invade the sphere of federal authorities.
Constitutional Article 107, Sections I-XVIII, provides the procedural ground for the Amparo judgment. Its preamble provides: All the controversies that are established in Article 103 will be subject to the procedures and forms of the judicial order as determined by law, in accordance to the following rules: I. The amparo judgment will be followed at the request of the affected party; ... ."(45) The first paragraph of Section II states: "The decision shall always be one that concerns itself solely with private individuals, and limited to conferring relief and protection in the special case upon which the complaint is founded, without a general declaration over the law or act which originate it".(46) Section III. involves Constitutional Article 123, "A", Section XX,(47) and establishes: "When the acts by judicial, administrative or by labor tribunals are being challenged, the amparo will only proceed in the following cases: a).- Against final decisions or awards or resolutions that put an end to the judgment, for which no other ordinary recourse is available through which they can be modified or reformed, regardless of whether the violation was committed in them or that, committed during the proceedings, it affects the defenses of the aggrieved party, transcending to the result of the pronouncement; if in a civil matter the violation has been challenged during the course of the proceedings through the ordinary recourse established by law and invoked as an infringement in the second instance (appeal or review), if it were committed during the first (trial level). These requirements will not be mandatory in the amparo against decisions dictated in controversies over actions involving civil status or those which affect the order and the stability of the family.(48) Section V. provides: "The amparo against final decisions or awards and resolutions that put an end to the judgment, whether the violation takes place during the proceedings, or in the same decision, shall be promoted before the corresponding Circuit Collegiate Tribunal, according to the distribution of jurisdiction established by the Organic Law of the Judicial Power of the Federation in the following cases: "a).- ...c).- ; d).- In labor matters, where the awards pronounced by the Local Boards or the Federal Conciliation and Arbitration Board for the Workers at the Service of the State are challenged".(49) This section is linked to Article 123, Part A, Sections XVIII, XX, XXI, and to Part B, Section XII. The last paragraph of section V reads: "The Supreme Court of Justice, by operation of law, or by a founded petition from the appropriate Circuit Collegiate Tribunal, or the Prosecutor General of the Republic, may hear the direct amparo, if its special characteristics warrant that it does so".(50)
The amparo judgment has often been compared to an appellate court where an inferior court's application of law and ruling are under review by the higher court. It has also been identified with the writ of habeas corpus where there are similarities in the legality of the acts being challenged. The amparo is in itself a process, not a recourse or an appeal and, as such, does not confirm or modify decisions issued by inferior courts. Through an amparo, the higher federal courts resolve the Constitutionality issues brought before their forum without resolving the external issues brought before the inferior federal or local courts. The amparo judge can also declare that an act by authority be suspended where it can further injure or destroy the subject matter, basis for the amparo. The suspension is similar to an injunction issued by a court in the US system of law with one important difference: that the injunction refrains parties from executing the act, whereas the suspension in the amparo, can only refrain a governmental authority.
These refer to the governing procedural bases found in Constitutional Article 107:
1. The principle of request from the affected, or aggrieved party: This is the fundamental principle since it activates the Constitutional protection before the jurisdictional organ. Therefore, the amparo shall always be initiated by the party who is challenging the act or law which violate Constitutional guarantees.
2. The principle of judicial prosecution: It originates the substantiation of the process established in Constitutional Articles 103 and 107.
3. The principle of relativity of the amparo decisions: Such principle avoids general decisions, i.e., that such are concretely applicable to the special case brought before the Courts.
4. The principle of "definitivity" in the amparo: The requirement that all possible available remedies be exhausted before attempting the amparo process.
5. The principle of strict law: This means that the competent tribunals may not supplement deficiencies found in the actions against the challenged acts, nor in the violation concepts with the only exceptions limited to the areas of Penal, Agrarian and Labor Laws where the laws being challenged have been declared unconstitutional by the Supreme Court and where it involves minors, in which case, the tribunals have an obligation to supplement the deficiencies, by operation of Law. In Agrarian matters, the courts have been allowed to complement deficiencies relating to the challenged act.
6. The principle of admission: Regarding the type of amparo the parties are required to bring according to the nature of the challenged law or act, the Supreme Court of Justice and the Circuit Collegiate Tribunals are competent to hear the cases involving direct amparos, whereas the District Courts are designated to resolve the indirect amparos.
The Procedure for a Labor Amparo:
Jurisdictional Distribution: Direct or Indirect Amparos
Constitutional Article 107, Section V, enunciates that the amparo against final decisions or awards or resolutions which end the judgment, whether the violations were committed during the proceeding or in the decision itself, is to be promoted before the corresponding Circuit Collegiate Tribunal in accordance with the competence distribution established by the Organic Law of the Judicial Power of the Federation in the following cases:
"d) in labor matters, when awards dictated by the Federal and Local Conciliation and Arbitration Boards, or by the Federal Tribunal of Conciliation and Arbitration of the Workers of the State are being challenged.
VI. In the cases referred to by the above section, the Regulatory Law for Articles 103 and 107 is to indicate the proceeding and the terms under which they are to be brought before the Circuit Collegiate Tribunals and, in its case, to the Supreme Court of Justice, to dictate their respective resolutions."
Article 163 of the Amparo Law (AL) indicates that the amparo against a decision, award, or resolution which ends the trial, dictated by judicial, administrative, or labor tribunals are to be presented through the responsible authority which issued the challenged act. Presentation of the amparo before a different responsible authority will not interrupt the terms provided by Articles 21 and 22 of the Amparo Law.
Article 114, Sections I-V, of the AL, establishes that the amparo shall be brought before the District Judge where the following are challenged:
I. Laws, federal or local, international treaties, regulations expedited by the President of the Republic in accordance with Section I of Constitutional Article 89, Regulations of local laws enacted by the governors of the State entities, or other regulations, which by their enactment or with the first act of application cause injury to the claimant;
II. Acts which do not derive from judicial, administrative, or labor tribunals. In these cases when the challenged act derives from a procedure followed in the form of a trial, the amparo shall only be brought against the final resolutions for violations committed in the same resolution or during the proceedings, if the violations caused the aggrieved party to become defenseless or deprived of the rights which the subject matter law provides unless the amparo is brought by a third party not involved in the controversy.
III. Acts from judicial, administrative or labor tribunals executed outside the trial, or after its conclusion. If it involves acts of execution of decision, the amparo shall be promoted only against the final resolution dictated in the respective proceeding, but where the other violations committed during that proceeding left the aggrieved party defenseless, they may be challenged in the same suit. Where it involves judicial auctions, they can only be promoted against the final resolution in which they are approved or disapproved;
IV. Acts over persons or things which are impossible to restore;
V. Executed acts outside or within a trial which affect external parties when the law does not establish, in favor of the affected party, any ordinary recourse or means of defense whereby those acts can be modified or revoked, as long as the matter does not pertain to the third party beneficiary trials.
The Labor amparo can be brought by affected parties or their representatives per Article 4 of the AL. All persons who can exercise their civil rights, whether Mexican or foreigners may bring suit. Where suit is brought by two or more persons, they are to name a common representative, according to Article 20 of the AL. Article 12 of the Law allows fictitious parties to promote the amparo through their representatives under the terms of the common law. Article 12 further states that in situations not provided by law, the personality of the parties shall be justified in the same manner in which it is determined by the subject matter from where the challenged act derives; and in the absence of a legal stipulation, the personality will be justified according to the provisions of the Federal Code for Civil Procedures. Article 14 of the AL, expresses that a power of attorney does not need to establish a special clause to promote the judgment, but it does to desist from the action. Where the death of either the affected party or the third affected party occurs, their representatives shall continue the challenge where the act did not strictly affect the deceased party's personal rights.
Article 11 of the AL expresses that responsible authority means one who dictates, promulgates, publishes, orders, executes or tries to execute the law or the challenged act. In an action for amparo the affected party may indicate one or more authorities as responsible for such acts. The amparo cannot be brought against private parties; therefore failure to state a responsible authority will lead to a rejection of the claim per Article 73, Section XVIII, of the AL.
In Labor amparos, the employer is a third affected party, if the amparo were promoted by a worker, and conversely, if it were promoted by an employer. Third affected parties are not always parties in the amparo process, as for example when an administrative resolution is challenged. The Public Minister, however, is always a party in Labor amparos per Article 5, Section IV of the AL.
Amparos are to be promoted fifteen days from the day following that in which notification was made to the affected party, as stipulated by Article 21 of the AL, in conjunction with Articles 739-752 of the FLL, and with the exceptions for the procedure for strike, indicated under Article 928, Sections II and III of the FLL. Article 22 of the AL imposes special terms for challenges against laws or others, and where the claimant was not properly notified.
The authorized person to receive notifications will be regarded as the representative throughout the proceedings. Notifications are covered under Articles 27 through 34 of the AL. They are important in that they will be basis for promoting nullity incidents in the file which motivated the notification and before the definite decision is dictated (Article 32 of the AL). The following will be effective, in accordance with Article 34 of the AL: Notifications made by the responsible authorities from the hour in which they were legally made. Other notifications, from the day following the personal notification or the day in which the list was fixed in District Courts, Collegiate Circuit Courts, or the Supreme Court of Justice.
Where a CAB act is being challenged, the amparo is to be promoted before the district judge, in application of Article 114, Section III. This provision is based on Constitutional Article 107, Section VII, which indicates the amparo against acts within a trial, outside a trial, or after its conclusion, of which affected third parties, not involved in the original controversy, against laws or acts by administrative authorities, shall be brought before the District judge under whose jurisdiction is the place where the challenged act is being executed or is to be executed, and its proceeding shall be limited to the report by the authority, summoning the authority to a hearing through the same order in which the report is requested, and in which the evidence offered by the interested parties shall be deposited, and in which the allegations will be heard, pronouncing the decision in the same hearing. In these cases the amparo should be indirect because the unconstitutional act is an administrative Labor action outside a judgment, as opposed to an award, which would require a direct amparo, based on a determination from a labor tribunal.
The controversial characteristics of an indirect amparo would be based on the application of Article 116 which require that the amparo be in writing and where the aggrieved party shall express I. The name and address, and that of the person authorized to receive notifications, i.e., the representative; II. The name of the third affected party, if any; III. The responsible authority or authorities. IV. [It is imperative that reference be made to Section IV of Article 116 which should contain] The law or act of every authority being challenged, and where the aggrieved party shall manifest, under oath, the facts or omissions witnessed and which constitute the antecedents of the challenged act or foundation of the concepts of violation; and V. The constitutional precepts which contain the individual guarantees the claimant considers to have been violated, as well as the concept(s) of violations, if the amparo is requested with foundation on section I of Article 1 of the AL. Once the procedural requirements have been fulfilled (for admission, Article 73, Sections I-XVIII and rules for dismissal of the claim, Article 74, Sections I-V), the thrust of the amparo depends on how the affected party shows the unconstitutionality of the act through the part reserved for "concepts of violation".
Judgments can either grant the amparo and declare the act as unconstitutional; deny it and declare the act as constitutional; or dismiss without examining whether the act is unconstitutional or not. The instance ends for lack of information or elements which condition its admissibility.
For the reasons indicated, earlier, the amparo is a process designed to grant relief from violations to Constitutional guarantees. It is also an extraordinary remedy against violations to the laws regulating the Constitution such as the Federal Labor Law which regulates Article 123, Part A.
Yes. Maquiladoras, or in-bond enterprises, must be authorized to operate in Mexico. Articles 2, 3, and 7 of the Presidential Decree for the Promotion and Operation of the Maquiladora Industry, published in the Diario Oficial on December 22, 1989, are the legal basis for the registration and operation of a maquiladora. Through the Presidential decree, several government agencies participate in the regulation of the maquiladora industry: Secretariat of Commerce and Industrial Development (SECOFI), and the Revenue Division (Dirección General Técnica de Ingresos) of the Secretariat of Treasury and Public Credit (SHCP). An inter-secretariat commission was created to coordinate the interaction of governmental agencies with maquiladoras. The commission comprises of the following Secretariat representatives: SECOFI, SHCP, Planning and Budget (SPP), STPS, the Secretary of State (Secretaria de Gobernación), the National Bank of Foreign Trade (Bancomext), Secretary of Communications and Transportation (Secretaria de Comunicaciones y Transportes), Mexico's Central Bank (Banco de Mexico), and, later, the Secretary of Social Development (SEDESOL) which has recently changed under a decree issued on December 28, 1994. A new Secretariat has been organized for environmental regional fishing. The Secretary of Urban Development and Ecology (SEDUE) issues a separate operating license after SECOFI approves the maquiladora program. In order to obtain a license, a maquiladora needs to submit an environmental impact statement to SEDUE. If the maquiladora is to be involved in discharging waste water, handling of hazardous materials or produce air emissions, it will also need special licenses.
While approval is being processed, SECOFI registers the applicant in the following: Foreign Relations, Federal Taxpayer Registrar (SHCP), the National Institute of Workers Housing Fund (INFONAVIT), the Mexican Institute for Social Security (IMSS), the National Maquiladora Industry Registrar, the National Foreign Investment Registrar, and after approval of the maquiladora SECOFI advises the Customs Bureau.
Among other administrative requirements and information, the following need to be presented for approval: 1.- Certified copy of the company's articles of incorporation with any corresponding amendments; 2.- Lease contract or title deed; 3.- Collective Labor Agreement where a maquiladora has negotiated one with a labor union; 4.- The production agreement executed by a US company and the maquiladora; 5.- Technical Assistance Contract if any.
Maquiladoras do not have to renew their registrations once they have been approved, but SECOFI may periodically conduct reviews. As of January 1, 1994, SECOFI may cancel a maquiladora registration on the basis of a petition from an agency of the Public Federal Administration.
Maquiladoras and other Mexican enterprises have the same employer obligations under the FLL. In addition, all Mexican companies including the maquiladora industry are subject to Article 7 of the FLL which requires that in all companies or establishments, the employers are to hire at least ninety percent of Mexican workers. Under technical and professional categories, the workers shall be Mexican unless there a none available for a determined specialty in which case, the employer shall temporarily hire foreign workers which do not exceed a ten percent of those in the specialty. The employer and the foreign workers shall be entirely responsible to train Mexican workers in such specialty. Doctors at the service of the company are required to be Mexican. This provision is not applicable to directors, administrators or general managers.
The Collective Labor Agreement:
Articles 386-403 cover the CLA, under the Seventh Title: Collective Work Relations, Chapter III. The CLA is defined by Article 386 as: "the executed agreement between one or several labor unions and one or several employers, or one or several employer associations for the purpose of establishing the conditions under which the work is to be performed in one or more companies or establishments." In line with this definition, its objective lies in the tendency of containing better conditions under which the work is to be performed. To this effect, aside from Constitutional guarantees, FLL regulation, custom and jurisprudence, the CLA, as a regulating fountain of labor law which governs the relations between workers and employers, individually and collectively(52) should contain negotiated rights which if not greater, cannot be lower than those guaranteed as minimal standards in individual contracts. Furthermore, the CLA is forceful enough to be used as the means by which to comply with I.L.O. conventions that do not require special legislation and through which they can be incorporated.(53)
The parties to the CLA must expressly state their consent in writing as required by Article 390 of the FLL, lest the CLA be ineffective. The agreement is to be prepared in triplicate, with a copy for each of the contracting parties, and one for deposit with the appropriate CAB, or with either the Federal CB or Local CB which is to submit it to either the Federal or Local CABs after recording the date and time of presentation. Unless another date has been stipulated by the parties, the CLA is to be in force from the time of presentation before the authorities.
Article 391, Sections I-X, stipulates the required contents of the CLA which are to govern the work relations of workers and employers. First, the CLA is to indicate the names and addresses of the parties. Second, indication of the companies or establishments under its coverage. Third, its duration, or the expression that it is to be for a specified or unspecified period. Fourth, the work schedules. Fifth, the days of rest and vacation periods; Sixth, the amount of salaries (which if not stipulated will cause the CLA to be ineffective, as provided by Article 393); Seventh, The clauses regarding training and development of the workers in the company or establishments comprised. Eighth, the provisions concerning the initial training and development of those who are to start work in the company or the establishment. Ninth, the bases for structure and function of the commissions to be set up in accordance with the Law. Tenth, the remaining stipulations to which the parties may agree.
Climent Beltrán points out that prior to the 1931 Law, actions arising from the CLA, were contemplated by Articles 52 to 54 of such Law. The latter referred to demand for performance of the CLA and damages by the labor unions who were parties to the CLA against other labor unions, also parties to the CLA and their members, and of their own members, and any others who had a duty under the CLA; as well as the individuals who had an obligation to demand performance and damages, accordingly, against other individuals or labor unions who also had duties to fulfill, as long as their failure to perform caused an individual injury. He believes that the elimination of such actions from the CLA was timely because it did away with CAB involvement brought through jurisdictional proceedings on issues which could involve internal union affairs. Accordingly, any actions deriving from the CLA, regardless of the nature, can be followed through the appropriate proceedings. If collective, they can be brought by the labor union, in accordance with Article 376, which does not preclude the member from self-representation, as provided for in Article 375.(54)
Article 392 refers to the possibility of establishing in the contract Mixed Commissions to carry-out certain social and economic functions. When the parties agree to stipulate them and consider them binding, their resolutions shall be executed by the CABs.
General Principles in CLAs:
Article 18, First Title, General Principles, stipulates that in the interpretation of Labor laws, the objectives of Articles 2 and 3(55) shall be considered. If in doubt, the interpretation which favors the worker most, shall prevail. Article 394 expresses that the CLA is to contain conditions which are no less favorable than those contained in the existing contracts in the company or establishment. Article 18 principle is confirmed, according to Climent Beltrán when he explains that this means that the rule to favor the workers the most is the one to apply. He also points out that the principle is again found in Articles 402 and 403.(56) Article 402 refers to the situation where an employer separates from a union which entered into the CLA, and the CLA is still in force, in which case, the CLA will continue to have effect regardless of the relationship between that employer and the union, or the workers' union. Article 403 concerns the cases of dissolution of a labor union, holder of the CLA, or when the CLA terminates, the work conditions shall continue to be effective in the company or establishment. Again, Climent Beltrán indicates that because the stipulations of the CLA govern individual work relations, these should be kept as individual worker rights as long as they are not inferior to those established by Law.(57)
Collective or Individual Violations for Breach of CLA:
It is interesting to note, however, that there are two contrasting views on employer fulfillment of the obligations in the CLA. The question is whether violations to individual rights comprised in the CLA are violations to the CLA itself. For example, if the individual rights reflected in the CLA are violated by the employer, is it necessary for the labor union to petition the employer and call for strike for breach of contract, or should these individual rights be exercised by the workers, individually, through an individual action?
Néstor de Buén believes that even where the employer fails to grant days of rest, or vacation periods, including failure to pay the workers' salary, this omission has generally been looked at as a reason to petition the employer and call for strike. De Buén indicates that this is inaccurate because the duty that arises from a CLA is not to pay salaries or grant vacations, but to establish the individual relations according to the general standards. In such cases the violation is to the individual rights and not to the CLA.(58)
For Climent Beltrán, the Mexican CLA contains a legal structure, as mandated by Article 391, which can be applied immediately and directly to the work relationship with the companies. Therefore, the CLA would make it unnecessary to enter into individual labor contracts since individual work relations which arise can be protected under the CLA, unless there are exceptional circumstances or cases, not provided for, such as contracting for temporary or specific services.(59)
Notwithstanding these points of view, the conflicts arising from the work relationship, whether individual or collective, should be resolved according to the classification of conflicts where the conflict itself is looked at in terms of those it affects. Where the conflict affects individual interests alone, the worker should bring an individual action; consequently, if the conflict concerns the general interests of the workers, then it is a collective action to be brought by the workers as a coalition, or through their labor union, depending on the remedy sought.
In accordance with Article 396, the stipulations of the CLA cover all the employees who work in the company or establishment even though they may not be members of the labor union, with the exception of the limitation provided by Article 184.(60) The limitation, as indicated in Article 184, occurs when the CLA itself contains a clause where coverage by the CLA is not to extend to "trust"(61) employees.
Article 397 establishes that where the CLA is for a specified or unspecified duration, or for a specified task, it shall be totally or partially revised in accordance with the stipulations in Article 399. Such stipulations provide that the application for the CLA revision should be made at least sixty days prior to: I. The expiration of the CLA for a specified time if it is not over two years; II. At the end of two years if the CLA for a specified period has a longer duration; and III. At the end of two years where the CLA is for an unspecified period or for a specified task. The clauses established in the CLA shall be used to calculate such terms, and in their absence, the date of the deposit of the CLA before the CABs will apply.
Article 399-bis indicates that notwithstanding Article 399, where the salaries are subject to daily cash payments, the CLAs shall be revised every year. The petition for this revision shall be made at least thirty days prior to the expiration of one year, transpired from the date of the CLAs execution, revision or extension.
Article 398 sets the rules for the revision of the CLA: I. If entered into by only one workers' union or by only one employer, any of the parties can request its revision; II. If entered into by several workers' unions, the revision shall be made only when the petitioners represent at least fifty-one percent of the total number of members of the unions; and III. If entered into by several employers, the revision shall be made only when the petitioners have at least fifty-one percent of the total number of workers affected by the contract. If none of the parties requested the revision, subject to Article 399, or the right to strike is not exercised, the duration of the collective labor agreement shall be extended for another equal term, or it may continue for an unspecified time, as provided by Article 400.
The conditions for termination of the CLA, are stipulated by Article 401, as follow: I. By mutual consent; II. By completion of the task; and III. For the reasons specified in Chapter VIII, Collective Termination of Work Relations, under the same Title, by the closing of the company or establishment. If in the latter case, the CLA termination applies exclusively to the establishment.
Néstor De Buén points out that at one time the LC was viewed as ". . . an adequate instrument to prevent social injustices. . . ," but that it has not been very popular, claiming that there are only nine LCs. Six of the nine cover the textile industry, the remaining three are distributed in the sugar and alcohol, the transformation of rubber into manufactured goods, and the radio and television industries.(62) De Buén describes Mario de la Cueva's initial reaction to the LC, as enthusiastic, because the LC plays an important role in the life of Mexican labor law because the largest industries have adopted it or tend to, and that workers and employers alike are attracted to it.(63) But, in De Buén's opinion, the LC benefits the larger companies because they have a larger number of workers, and therefore, can decide through majority votes the economic conditions to be adopted and which cannot be afforded by the average size and smaller enterprises do to their unstable economies. He also thinks that there is a big truth which cannot be ignored, regarding the Mexican economy which, he believes, is still dependent on multinational companies, therefore, the average sized and smaller enterprises which are Mexican, are more hurt than benefited by the LC. Concerning labor unions, De Buén also feels the LC has a damaging effect on the smaller ones because they lose decision-making faculties to the larger central union which decides in its favor. Aside from this fact, although the smaller majority unions administer the LC in certain companies, they tend to be substituted and absorbed by the larger central union. Finally, he says, experience has shown that their yielding nature points to the possibility that they could be controlled by international companies.(64)
When the 1931 Labor Law was in force, the LCs were found in the same chapter as the CLAs, but were known as "collective contracts of obligatory character". De Buén points out that this is because no special procedure existed for the LC to be executed as it is done today. During that period, a CLA was raised to the category of an LC when the CLA had been executed by a two-thirds majority of unionized workers and employers in particular branch of industry within a certain region. After it was decreed by the executive power, federal or local, the LC would be declared as obligatory.(65) Climent Beltrán adds that the procedure to raise a CLA to the category of an LC was established through the requirements and procedures established in Article 58 of the 1931 Labor Law, but in reality, to declare the LCs as obligatory, the workers and employers were convoked, a practice which, under the 1970 FLL, continues in the form of a new procedure established under the worker-employer conventions.(66) However, the old way in which the CLAs were raised to the category of an LC, as provided by the 1931 Law, under Article 58, still prevails through Article 415, Sections I-VI.
Differences between a CLA and the LC:
Néstor De Buén, points out that the CLA can be seen as a judicial matter which acquires validity when made in writing, and it becomes effective after it has been deposited before the CAB. The LC, does not acquire validity until after it has been declared by the President of Mexico, or the Governor of a State entity, and acquires effectiveness only after it has been published in the DO, or the official newspaper of the State entity.(67) In other words were the CLA is valid only after its deposit before the CABs, the LC is binding after it has been declared by the local or federal executive powers. The last difference is in terms of control over the LC. Where CLAs are concerned, the labor unions are said to be title holders, whereas in LCs, they are referred to as administrators.(68)
FLL Regulation on the LC:
Chapter IV, under the Seventh Title contains the provisions for the Law-Contract in Articles 404-421.
This type of convention is one entered into by one or several labor unions and several employers, or one or several employer associations for the purpose of establishing the conditions under which work is to be performed in a certain type of industry, and declared legally binding in one or several Federal Entities, in one or several economic zones which comprise one or more of such Entities, or throughout the national territory. (Art. 404.)
Law-contracts can be entered into by industries under federal or local jurisdiction. (Art. 405.) Labor unions can request them if they represent at least two-thirds of the union members of a branch of industry in one or several Federal Entities, in one or more economic zones which comprise one or more of such Entities or throughout the national territory. (Art. 406.)
A petition shall be submitted to the STPS if it concerns two or more Federal Entities or industries under federal jurisdiction, or to the Governor of the State or Territory or the Chief of the Department of the Federal District if it concerns industries under local jurisdiction. (Art. 407.) Once the majority requirement is met, (Art. 408.), and if the STPS, the Governor of the State or Territory, or the Chief of the Department of the Federal District consider that the Law-contract is timely and beneficial for the industry, the labor unions and affected employers will be convoked (Art. 409.) through publication in the Diario Oficial de la Federación (DOF), the official State newspaper, or in the newspapers and other media, the date and time of the convention will be announced. (Art. 410.)
The convention is to be presided by the Secretary of the STPS, or by the Governor of the State or Territory, or by the Chief of the Department of the Federal District, or by a designated representative.
The convention shall establish its regulation and form the necessary commissions. (Art. 411.) The Law-contract shall contain: I. Names and addresses of the labor unions and of the employers who attended the convention; II. The Entity, or Federal Entities, the zone or zones which it comprises, or the expression of governing throughout the national territory; III. Its duration which cannot exceed two years; IV. The work conditions indicated in Art. 391, Sections IV, V, VI, and IX.; V. The rules under which the plans and programs to implement training and development in the branch of industry it concerns; VI. Any other provisions to which the parties agree. (Art. 412.) In the Law-contract, the clauses referred to by Art. 395 may be established. The labor union in charge of the administration of the Law-contract in each company shall apply the clause.(Art. 413.)
The agreement shall be approved by the majority of workers, as indicated in Article 406, and by a majority of employers who employ the same majority of workers at their service. Once the agreement is approved, the President of the Republic, or the Governor of the State or Territory, shall publish it in the DOF or in the official State newspaper, declaring it a Law-contract for the branch of industry concerned, for all the companies or establishments which at the time exist, or which are to be established in the future in the Entity or Federal Entity, in the zone or zones which it comprises, or throughout the national territory.(Art. 414.)
If the collective contract has been entered into by a two-thirds majority of unionized workers in a certain branch of industry, in one or several Federal Entities, in one or several economic zones, or throughout the national territory, upon meeting the following requirements, the agreement may be raised to a Law-contract. I. The application shall be filed by the labor unions or by the employers before the STPS, the Governor of the State or Territory, or the Chief of the Department of the Federal District, subject to the requirements of article 407. II. The labor unions and employers shall prove that they satisfy the majority requirement, in Art. 406, III. The petitioners shall attach a copy of their collective labor agreement, and indicate the labor authority with which it is filed. IV. The authority receiving the application, after verifying the majority requirement, will order its publication in the DOF or in the official State newspaper, and indicate a term of at least fifteen days in which to formulate oppositions. V. If none are formulated within the time established, the President of the Republic, or the Governor of the State or Territory, declare the Law-contract binding, as stipulated in article 414. VI. If any opposition to the Law-contract is formulated within the allowable term: a) The workers and the employers shall within fifteen days submit their observations in writing and attach any substantial proof. b) The President of the Republic, or the Governor of the State or Territory having considered the information on file may declare the Law-contract as binding. (Art. 415, I-VI) Law-contracts become effective the day after they are published in the DOF, or in the official State newspaper, unless another date is stipulated in the agreement. (Art. 416.) The Law-contract is to be applied notwithstanding any other stipulation to the contrary in the collective contract which the company entered into except where it contains other stipulations which are more benefiting to the worker. (Art. 417.) In every company, the labor union with the highest number of members shall administer the Law-contract. The administration of the Law-contract shall be lost where the CAB declares a majority loss. (Art. 418.) The following rules apply to the revision: I. The labor unions and employers representing the majority indicated in article 406, may request it; II. The petition shall be brought before the STPS, the Governor of the State or Territory, or the Chief of the Department of the Federal District, at least ninety days before the expiration date; III. Upon receipt, the authority, after verifying the majority prerequisite, shall convoke the affected labor unions and employers subject to the rules in article 411; and IV. If the labor unions and employers agree, the STPS, the Governor of the State or Territory or the Chief of the Department of the Federal District shall order its publication in the DOF, or the official State newspaper. The reforms shall be in effect the day after they are published unless another date is stipulated in the convention. (Art. 419.) Where there are daily cash salaries, the Law-contract revisions shall be made on a yearly basis. The request for revision shall be made at least sixty days before the expiration date transpiring from the date of the contract's execution, revision, or extension. (Art. 419-bis.) If none of the parties requested the revision or exercised the right to strike, the Law-contract shall be extended for another equal term as the one stipulated for its duration. (Art. 420.) Law-contracts terminate: I. By Mutual consent of those representing the majority indicated in Art. 406; II. Where, at the end of the revision proceedings, labor unions and employers cannot reach an agreement, except where the workers exercise the right to strike. (Art. 421.)
Modifications of CLAs and LCs:
Article 426 of the FLL allows the modification of work conditions under economic circumstances for CLAs, and stipulates two economic circumstances.
The expression, "economic circumstances" used in Article 426, is somewhat ambiguous, although in practice it refers more often to situations where the employer needs to cut costs to save a business. In Motives, Chapter XXXVI, collective modification of the work conditions, the phrase "unforeseen economic circumstance that could develop," does not clarify if such economic circumstances could refer to situations to increase productivity to meet market demand, as well.
Juan B. Climent Beltrán comments that because of the two circumstances mentioned in Article 426, it is, practically, an anticipated revision of the CLA, with the only difference lying on the petitions to modify the work conditions which undergo a special procedure subject to the proceedings for collective conflicts of an economic nature.(69) Climent also helps to clarify the operation of Article 426, which is related to a jurisprudence thesis, transcribed below, on the modification of the work conditions contained in the CLA. He explains that the agreement, to which Article 901 refers, makes it unnecessary to undergo a collective conflict, economic in nature, as expressed in Article 900. The expert points out that, according to the interpretation, the objective can be reached through an agreement between employer and labor union to modify the work conditions contained in the CLA, as long as the rights of the workers, granted by the Constitution and the FLL are not diminished. He believes, however, that the "conciliatory agreement" mentioned in Article 901, should be made at the onset of the economic conflict where the employer should exhibit the documentation to justify the need for a modification of work conditions before the CAB. In this manner, the CAB, will have the proper elements to enable it to immediately approve the agreement between the parties, as a conciliatory procedure to end the conflict, provided the agreement does not contain any waiver of rights by the workers. Climent believes that the objective here is not reached in the same manner where an extra-judicial agreement is presented without proof to substantiate the modification.(70)
Also explained in Motives for Law, under the work relation and the labor agreement, are the effects of Articles 33 and 34, under the Second Title, Chapter I: General Provisions of the FLL , is that:
The purpose behind Article 34, is to:
When an employer petitions the CAB for the modification of the CLA, directly, or through an agreement with the workers, the CAB may authorize the modifications justified on economic circumstances. Of course, any modification to the work conditions aside from an agreement between workers and employer, is prone to opposition which often leads to the standard economic conflict. When this happens, while the matter is pending before the CAB, the workers have a right to suspend the work relations though a strike The strike, according to Article 902, would also interrupt the proceedings, under way, unless, of course, the workers agree to submit the conflict to the Board for resolution.
This is another instance where if the employer unilaterally modifies the CLA, the labor union, or the workers as a coalition, can petition the employer for breach of CLA with a call for strike, per Articles 440, 441, 442, 447, 450, Sections I and IV.
Where the workers do not bring suit for unjustified dismissal within a two-month period following the day of their dismissal, the SOLs can extinguish any action deriving from it. In the absence of a CLA, where there had been an agreement regarding the payment of benefits and, should these be incorrect, i.e., inferior to those stipulated in the agreement, at the time of payment, the workers can still bring an action to nullify for differences paid. Since these payments pertain to salary, their actions can be brought within one year from the day following the date they were due, per Article 516. This action derives from Article 123, Section XXVII, which stipulates that any conditions expressed in the contract will not bind the parties where they, (h.), " . . . imply a waiver of any right, wholly reserved in favor of the worker, in the laws which protect and aid workers." As mentioned above, Article 33 of the FLL stipulates that any waiver made by the workers regarding their paid salaries, indemnization and other fringe benefits , whatever the form or manner given, shall be ineffective. . . ."
As for any agreement between an employer and the labor union, after execution of a CLA, and prior to its revision, if it contains conditions which tend to impair any workers' rights, these conditions are ineffective as stipulated by Article 123, Section XXVII, which includes: "g). Those which constitute a waiver of the indemnization to which the worker has a right for . . ., and damages for breach of contract, or for dismissal from work." Article 34 of the FLL ensures that any such agreements which tend to affect workers' rights shall only have future effects, meaning that it cannot be applied where it impaired the benefits in progress. In addition, such agreements cannot refer to workers, individually. Therefore, where the individual labor contracts provide better benefits than a CLA, the CLA will only have future effects, and where an agreement between a labor union and company impairs any of the rights established in the individual labor contract, the individual contract will prevail.
Article 440 defines the term "strike", as a temporary work suspension carried out by a coalition of workers. In light of Article 440, the right to strike may be exercised by a coalition of workers or the labor union representing the workers. Article 441 specifies that labor unions are permanent coalitions. Therefore when a labor union is legally formed, it acquires by that act, the capacity to elaborate the petitions with a call for strike which is to include only the members who are affected by the conflict. Climent Beltrán indicates that due to the objectives listed in Article 450, the Law envisions a labor union which is to promote the strike. Where the strike is promoted by a coalition of workers, the coalition needs to justify its legal existence through the assembly minutes in which such strike was voted. In this manner, the coalition can show that it has the judicial capacity to exercise the right to strike which Article 440 enunciates. In contrast, in order for the labor union to exercise that right, it has only to prove its registration since the union has an inherent capacity to act as a coalition for the purposes of the strike.(76)
As already explained, the legality of the strike, according to Article 444, is based on the objectives stipulated in Article 450 which include: I. To obtain a balance between the different factors of production, harmonizing labor rights with those of capital; II. To obtain the execution of the collective contract from the employer(s) and to demand its review at the end of its term, subject to the provisions in Chapter III; To obtain the execution of the law-contract from the employer(s) and to demand its review at the end of its term, subject to the stipulations in Chapter IV, Seventh Title; IV. To demand enforcement of the legal provisions on profit sharing; VI. To support a strike where it has any of the previously enumerated objectives; and VII: To demand the review of the accorded salaries to which Articles 399-bis and 419-bis, refer.
Trueba Urbina, notes that due to a legislative error, the strike objective in Section VI which is to support a strike for the reasons indicated in I-V, precedes Section VII which deals with salary revisions. Therefore the right to strike in support of other unions which are striking for salary revisions is excluded as an objective of the strike.(77)
The period between the petition to the employer and that in which the strike is declared as existent is regulated by Articles 920 and 921 of the Procedure for Strike in Chapter XX.
Article 920 indicates that the procedure for strike shall begin with the petition document which should include the following: I. It is to be addressed in writing to the employer and contain formulated petitions which indicate the purpose of the strike should they not be satisfied, concretely expressing the object for such and indicating the day and time in which the work suspension is to materialize, or indication of the pre-strike term; II. The petition document shall be submitted in duplicate to the CAB. If the company or establishment is located outside the place where the CAB is found, the document may be submitted to the nearest labor authority or to the political authority with greater hierarchy of the place where the company or establishment is located. The summoning authority shall forward the file within the next twenty-four hours to the CAB, and is to notify the President of the Board either by telegraph or by telephone. III. The notice for work suspension is to be given at least six days before the date indicated for the suspension, and ten days if it involves public services, observing the legal provisions established in the Law. The term starts to count from the day and time the notice is served on the employer.
Article 921 stipulates that the President of the CAB or the authorities referred to in Section II of Article 920, are strictly responsible for forwarding the copy of the call for strike to the employer within forty-eight hours following receipt. The effect of the notification is to constitute the employer, throughout the term of notice, as depository for the company or establishment affected by the strike, with the inherent faculties and responsibilities of a trustee. Article 922 stipulates that the employer should answer the petition within twenty-four hours after receipt of the summons.
During the pre-strike period the conciliation proceedings may be initiated, in accordance with Article 926. Article 927 stipulates that the conciliation will not interrupt the effects of the notice. Therefore, the employer has an obligation to attend the conciliation hearing, where failure to appear can be held as contempt of court, as specified by Article 731. If, on the other hand, it is the workers who fail to appear, the term for the work stoppage will not run; consequently, the strike shall be considered inadmissible and the record returned to file.
Article 928 establishes the following rules for strike proceedings: I. With the exception of the provisions established by Article 620, under Title Eleven, Labor Authorities, Chapter XII, Federal Conciliation and Arbitration Board, for the operation of the Board, en banc, and for the Special Boards, the President shall personally intervene in the following resolutions: a) Lack of personality; b) Incompetence; c) The cases established in articles 469 (termination of strike), 923 and 935 (under special circumstances, the CAB decides the number of workers who must continue to work). d) Declaration of inexistence or illegality of strike. II. The general rules regarding the terms for notifications and summons shall not be applicable. Notifications shall be effective from the day and time in which they are made; IV. Under the terms specified in Article 710, the members of the Board shall not be denounced, nor will any other incidents, aside from the lack of personality, which may be promoted by the employer in the answer to the petition with call for strike, and by the workers within forty-eight hours following that in which they become aware of the employer's first promotion. The Board, within twenty-four hours following the promotion through a hearing of the parties, shall dictate the resolution; and V. No issue involving competence shall be promoted. If the Board, upon summoning the employer, notes that the matter should not be under its competence, it shall make the corresponding order. The workers have a twenty-four hour term to designate the Board which they consider competent so that the record may be forwarded. The promotions shall preserve their validity, but the term for the work suspension shall run from the date in which the designated competent Board notifies the employer of receipt of the record, which is also to be notified to the parties in the incompetence resolution.
Measures Which Protect the Right to Strike:
Article 924 stipulates that when the petition with a call for strike is received, all judicial and administrative matters pending against the company's estate is to be suspended, and removal of goods from the place where they are installed may not be made except where, before the strike is declared, it concerns: I. matters having to do with indemnization, salaries, pensions and other benefits payable up to two years of a worker's salary; II. Credits derived from the failure to pay contributions to the Mexican Institute for Social Security; III. To insure the deductions which the employer has an obligation to collect towards the National Fund for Workers Housing; IV. Any other fiscal credits. The last paragraph states that the rights of workers shall always have preference over the other credits stipulated in Sections II-IV. Trueba Urbina indicates that this provision prevents unfair "legal frauds" against workers, which could be plotted by dishonest employers and union leaders to avoid the payment of credits of a social nature, which was possible to do simply by calling a strike which could be constantly extended.(78)
Article 448 under the Eight Title, in conjunction with Article 902, found in Chapter XIX of the Procedure for Collective Conflicts Economic in Nature, stipulates that the exercise of the right to strike interrupts the proceedings for collective conflicts which are economic in nature pending before the CAB, as well as the petitions brought for these, except if the workers bring the conflict to the CAB for resolution. Another exception to the interruption of economic conflict procedures is stipulated by the final paragraph of 448: The preceding paragraph will not be applicable when the strike's objective is one pointed out in Section VI of Article 450, which refers to strikes in support of another with any of the objectives enumerated in I-V. As mentioned above the special procedure for collective conflicts of an economic nature is a special proceeding where the workers and the employers have the right to petition the Boards, to modify work conditions.
Article 449 mandates that the CAB and the appropriate civil authorities shall respect the right to strike, providing workers the necessary guarantees and assisting them with whatever they require to suspend work. Climent Beltrán explains that the above articles are the fundamental guarantees for the right to strike.(79) He also associates(80) Article 449 with Article 4, Section II, under the First Title, General Principles, which states: "The rights of society are offended in the cases provided by Law and in the following: a) When a strike is declared under the terms stipulated by Law, and an attempt to substitute the strikers is being made or where they are substituted in the work that they do, without having resolved the conflict which is the motive for the strike, except for the indications made by Article 468."(81) b) Where a strike is declared under the same legal terms by the majority of workers in one company, the minority seeks to resume work or continues to work.
Legality of the Strike:
Article 444 defines a legally-existent strike as that which meets the requirements of Article 450, Sections I-VII. Article 445 indicates that a strike is illegal when either of the following occur: I. When the majority of strikers carry out violent acts against persons or property; and II. During a war, if the workers are part of establishments or services that depend on Government.
Article 447 states that a strike is the legal basis for the interruption of the effects of the work relation throughout the strike's duration.
Article 469 provides the basis for the termination of the strike. Section I: By convention between the striking workers and the employer; II. If the employer accedes at any time to the petitions found in the written notification for strike and pays the workers lost wages; III. By arbitration award from the person or commission to which the parties have freely agreed; and IV. By award from the CAB if the striking workers submit the conflict for decision.
Other Applicable Regulations for Strike and its Proceeding:
Articles 452 through 458 were derogated and substituted in the following manner: Article 452 by Article 920. Article 453 by the first and second paragraphs of Article 921, and the first paragraph of Article 924. Article 454 replaced by Article 922; Article 455 is now Article 925. Articles 456 through 458 were substituted by Articles 926 through 928, respectively. Articles 460 through 465 were also derogated and consecutively replaced by Articles 929 through 934 of the Chapter on Procedure for Strike.
Article 466 refers to the workers who, notwithstanding the strike, must continue to provide services such as those in transportation where if on route, must continue until the destination is reached, and hospital and health care workers who must continue to provide care for in-patients until they can be transferred to another facility.
Articles 467 and 468 were also derogated and their provisions are now covered by Articles 935 and 936 of the Procedure for Strike in Chapter XX. Articles 470 and 471 were derogated as well, and replaced by Articles 935 and 936 of the Procedure for Strike in Chapter XX. There are some instances where the Board shall make arrangements when the nature of the business affected by a strike can suffer detrimental losses if some of its operations are discontinued. Article 935 provides that the Board is to assign the workers to continue operations in the company once it has verified the employer's need. Article 936 refers to both public services and emergency situations at the company affected by strike, stipulating that any workers who refuse to provide services shall be replaced by the employer. If it becomes necessary, the Board shall require the aid of the public forces to obtain rendering of these services.
Other Proceedings according to the Nature of the Strike when Submitted to the Boards for solutions:
Notwithstanding the Strike Proceeding described above, Article 937 provides that when the workers submit the conflict to the CAB for resolution, the strike is to be followed under the appropriate proceeding according to the nature of the conflict. Consequently, if the objective is to compel the employer to enter into a CLA, the conflict will be decided through the Ordinary Procedure, provided it does not involve a majority issue. If the conflict involves salary increases or better working conditions, as mentioned earlier, it is to be resolved through the Procedure for Conflicts which are Economic in Nature.
It is also important, therefore, to understand whether the strike can be classified as justified or not, per Article 446 which states that a justified strike is one where the employer is responsible for its motives. Article 937, in this case, stipulates that the conflict shall undergo the Ordinary Proceeding when the Board is to establish such liability. If it does, it shall order the employer to satisfy the workers' petitions, as long as they are permissible, in addition to payment for lost wages for the duration of the strike. However, the employer will not be ordered to pay for lost wages where the strike was motivated in support of another, as specified in Section VI of Article 450.
Article 938 provides that if the objective of the strike is to enter into an LC or obtain its revision, the provisions in the proceeding for strike shall govern with the following modifications: I. The petition with a call for strike shall be presented by a league of labor unions, with a copy for each of the petitioned employers, or by those from every company or establishment, to the CAB, or to the authorities mentioned in Article 920, Section II; II. In the petition mention must be made of the day and time in which the work stoppage is to take place which should be thirty or more days after the petition is brought to the CAB; III. If the petition is brought before the CAB, the President, under strict liability, shall forward a copy of the petition with call for strike directly within twenty-four hours following its receipt, or shall expedite within the same time-frame the necessary requirements that are to be exhausted by the required authority, under very strict liability, within twenty-four hours following receipt. Once the requirements have been exhausted, they shall be returned within the same time-frame of twenty-four hours; and IV. If the petition is brought to the authorities referred to by Section I, these shall, also, under very strict liability, directly forward the employer a copy of the petition within twenty-four hours following receipt. Upon completion of the summoning, they shall remit the record to the CAB within the same term of twenty-four hours.
COLLECTIVE CONFLICTS W/O CALL FOR STRIKE, ACCORDING TO CAUSE
a. Cifras preliminares.
REGISTERED STRIKES ACCORDING TO STATES
b. Cifras preliminares.
REGISTERED STRIKES ACCORDING TO STATES
c. Cifras preliminares.
Subject Matter Jurisdiction:
Constitutionally mandated by Article 123, Section XXXI. Regulated under Title Eleven, Labor Authorities and Social Services, Chapter II, Articles 527 and 528.
Article 698, Title Fourteen, Procedural Labor Law, Chapter III, Jurisdiction, pertains subject matter jurisdiction only, Federal or Local.
Refers to venue and is distributed according to Article 700, Title Fourteen, Procedural Labor Law, Chapter III, Jurisdiction:
I. If the matter concerns a CB:
Sample Petition for Labor Inspection(82)
Secretary of Labor and Social Welfare
Name and address of petitioner
Based on Article 541 and other relevant provisions of the Federal Labor Law, I respectfully petition that a Labor Inspector be commissioned to intervene on a conciliatory basis to practice an inspection, urgent in nature, at the following company:
Name and Address of Company
I respectfully manifest, under oath, that I am a worker of said company, with a seniority of (length of work relation), and working in the (name of department) as a (position). I have been assigned a salary of (amount).
As of (date): Narrate facts regarding violations.
Due to the above, I ask that a Labor Inspector be commissioned to conduct an investigation of the following:
a) Certify the work relationship of the undersigned, as well as that of other co-workers who may find themselves in similar situations, citing the violations to the labor laws committed against me (us).
Place and Date
Liability and Sanctions
Article 992, under Title Sixteen, provides the sanctions for violations to the labor laws committed by employers or by the workers, who shall be penalized according to the provisions of this Title, notwithstanding the liability to which they may be subject for non-compliance of their obligations.
The quantities established as monetary sanctions shall be based calculating the daily general minimum salary rate effective in the place and at the same time the violation is committed.
3. See e.g., Ignacio Burgoa's definition of amparo: El Juicio de Amparo, 10th ed. (Mexico, Porrúa, S. A., 1975), as cited by Alberto Trueba Urbina and Jorge Trueba Barrera, Nueva Legislación de Amparo Reformada, 62nd ed. (1950: Mexico, D.F.:Porrúa, S.A., 1994) p. 456. 4. See e.g., Silvestre Moreno's definition of amparo in: Tratado del Juicio de Amparo (Mexico, La Europea de J. Aguilar Vera y Cia., S. en C., 1902), as cited by Jorge Trueba Urbina and Jorge Trueba Barrera, Id. 7. Amparo under review, which was not granted by the District Judge as an indirect amparo, and brought for review before the Circuit Collegiate Tribunals where the inferior court's decision was upheld. 15. Ejecutorias refer to the decisions issued by either the Supreme Court of Justice or the Collegiate Circuit Tribunals. Please refer to the Glossary for an explanation of how they constitute jurisprudence and the extent of binding force upon the lower courts. 34. Id, as indicated by Juan B. Climent, other than the matters resolved in extraordinary assemblies which require two-thirds majority votes, the remaining issues involve a fifty-one percent of the total members which includes removal of officers. 36. Supra Note 9, p. 188, commented by author, indicating that subparagraphs b) and c) should be understood in conjunction with Art. 873, where the worker or family are plaintiffs, Board indicates deficiencies and omissions. 47. Constitutional Article 123,Part A, Section XX: "The differences between capital and labor shall be subject to a CAB decision formed by an equal number of representatives from labor, employers and one from government;" 55. Art. 2 of the FLL: Labor laws tend to obtain the balance and social justice between the relations of workers and employers. Art. 3: Work is a social right and an obligation. It is not an object of commerce, it demands respect for the freedom and dignity of one who renders it and it must be rendered under conditions which secure life, health and a sufficient economic level for the worker and family. There shall be no stipulation of distinctions among the workers on the basis of race, sex, age, religious belief, political doctrine, or social condition. Likewise, it is a social welfare concern to promote and observe the training and development of workers. 61. As defined by Article 9 of the FLL, such category depends on the nature of the work performed and not on the position title. Refers to a management employee whose work relation is governed under special work, title Six, Chapter Two, Articles 182-186. 81. Art. 468 became Art. 936 under the 1980 procedural reforms of the FLL, referring to Art. 935 where workers are required by the CAB, according to the nature of the business to continue work during the strike.
3. See e.g., Ignacio Burgoa's definition of amparo: El Juicio de Amparo, 10th ed. (Mexico, Porrúa, S. A., 1975), as cited by Alberto Trueba Urbina and Jorge Trueba Barrera, Nueva Legislación de Amparo Reformada, 62nd ed. (1950: Mexico, D.F.:Porrúa, S.A., 1994) p. 456.
4. See e.g., Silvestre Moreno's definition of amparo in: Tratado del Juicio de Amparo (Mexico, La Europea de J. Aguilar Vera y Cia., S. en C., 1902), as cited by Jorge Trueba Urbina and Jorge Trueba Barrera, Id.
7. Amparo under review, which was not granted by the District Judge as an indirect amparo, and brought for review before the Circuit Collegiate Tribunals where the inferior court's decision was upheld.
15. Ejecutorias refer to the decisions issued by either the Supreme Court of Justice or the Collegiate Circuit Tribunals. Please refer to the Glossary for an explanation of how they constitute jurisprudence and the extent of binding force upon the lower courts.
34. Id, as indicated by Juan B. Climent, other than the matters resolved in extraordinary assemblies which require two-thirds majority votes, the remaining issues involve a fifty-one percent of the total members which includes removal of officers.
36. Supra Note 9, p. 188, commented by author, indicating that subparagraphs b) and c) should be understood in conjunction with Art. 873, where the worker or family are plaintiffs, Board indicates deficiencies and omissions.
47. Constitutional Article 123,Part A, Section XX: "The differences between capital and labor shall be subject to a CAB decision formed by an equal number of representatives from labor, employers and one from government;"
55. Art. 2 of the FLL: Labor laws tend to obtain the balance and social justice between the relations of workers and employers. Art. 3: Work is a social right and an obligation. It is not an object of commerce, it demands respect for the freedom and dignity of one who renders it and it must be rendered under conditions which secure life, health and a sufficient economic level for the worker and family. There shall be no stipulation of distinctions among the workers on the basis of race, sex, age, religious belief, political doctrine, or social condition. Likewise, it is a social welfare concern to promote and observe the training and development of workers.
61. As defined by Article 9 of the FLL, such category depends on the nature of the work performed and not on the position title. Refers to a management employee whose work relation is governed under special work, title Six, Chapter Two, Articles 182-186.
81. Art. 468 became Art. 936 under the 1980 procedural reforms of the FLL, referring to Art. 935 where workers are required by the CAB, according to the nature of the business to continue work during the strike.