Mexico: The Senate ratified Mexico’s adhesion to Convention 98 of the International Labour Organization (ILO) on the right of freedom of association and free collective bargaining

The Senate ratified Mexico’s adhesion to Convention 98 of the International Labour Organization (ILO) on the right of freedom of association and free collective bargaining. This Convention that is a treaty, will become part of the Mexican legal system due to its binding effects.

The most relevant Articles of this Convention are:

– Article 1.

1. Workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment.

2. Such protection shall apply more particularly of acts calculated to:

• Make the employment of a worker subject to the condition that he shall not join a union or shall relinquish trade union membership;

• Cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities outside working hours or, with the consent of the employer, within workers hours.

Comment. As it may be appreciated, the Closed Shop Clause provided in Article 395 of the Mexican Labour Law, is in incompliance to the right of freedom of association, thus it should be eliminated, from the Law and from all collective bargaining agreements containing it. Consequently, unions may not condition an individual to be affiliated to be hired by an employer,

– Article 2.

1. Workers’ and employers’ organizations shall enjoy adequate protection against any acts of interference by each other or each other’s agents or members in their establishment, functioning or administration.

2. In particular, acts which are designed to promote the establishment of workers’ organizations under the domination of employers’ organizations, or to support workers’ organizations by financial or other means, with the object of placing such organizations under the control of employers or employers’ organizations, shall be deemed to constitute acts of interference within the meaning of this Article.”

Comment. In compliance to this Convention, employers shall not participate in the incorporation of workers’ unions, neither shall they pay union dues, these must absolutely be paid by the workers on a voluntary basis.

– Article 3.

Machinery appropriate to national conditions shall be established, where necessary, for the purpose of ensuring respect for the right to organize as defined in the preceding Articles.”

Comment. In our opinion, the autonomous organism under the constitutional reform on labour justice will be responsible for enforcing this provision of the Convention.

– Article 4.

Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers’ organizations and workers’ organizations, with a view to regulation of terms and conditions of employment by means of collective agreements.”

In conclusion, from the quoted Articles we may highlight:

• Workers must be absolutely free to join or not to join a union, or quit being affiliated to it, as their job should not be subject to the condition of being affiliated to a union.
• Therefore, unions will face the challenge of reinventing themselves to convince workers of the free decision to join them.
• Unions must be free of any interference from employers in their activities, including payment of union dues.
• Employers shall not organize workers’ unions.
• Union sponsorship by employers is considered as interference; unions should only be supported by dues from their affiliates.
• Work conditions must result from collective bargaining agreements.
• It must be highlighted that this Convention is an international treaty thus, its provisions are binding for the ratifying parties and, according to our Constitution, international treaties are part of our legal system.
• Finally, due to the ratification of this Convention, the Mexican Labour Law should be modified to eliminate Article 395, which currently rules the Closed Shop Clause upon Admission and a modernization of the current procedure to strike should be undertaken.