Brief Description of Employees’ and Employers’ Associations
Article 356 of the FLL defines a union as “the association of workers or employers for the study, advancement, and defence of their respective interests.” It follows from this definition that Labour unions may not include both workers and management members.
Labour unions can be organized as follows:
- trade unions, encompassing workers of the same profession, skill, or specialty;
- enterprise unions, encompassing workers employed in the same enterprise;
- industrial unions, encompassing workers who work in two or more enterprises in the same industry;
- national industry-wide unions, formed by workers employed in the same industry but who are located in two or more states (including the Federal District) and various trades; and
- multi-craft unions, established in municipalities that do not have 20 or more workers of the same profession, trade, or specialty.
Similarly, there are different types of employers’ unions or associations:
- those formed by employers in one locality who are engaged in one or more activities; and
- national associations, comprising employers in several states.
Among other activities, labour unions may do the following:
- challenge the annual tax declarations filed by employers
- initiate a collective dispute on economic issues;
- sign collective agreements on behalf of workers;
- determine participation of individual workers in profit sharing;
- oversee the operation of training systems;
- establish general seniority scales;
- participate in the drafting of work rules; and
- deal with occupational safety and health problems.
A union can be established with at least 20 workers in active service, or by the association of at least three employers. Previous authorization is not required for the establishment of a labour union. Workers occupying positions of trust cannot belong to the same labour unions with other workers, although they may establish their own labour unions.
Rights and Importance of Trade Unions
Even though the official political party (the ‘Institutional Revolutionary Party’ or ‘PRI’) has changed to MORENA, trade unions are still a substantial and important player in the political organization of Mexico. They strongly influence the Mexican Congress and have introduced and supported most of the social legislation. Trade unions in Mexico have representatives on all the bodies responsible for the election of members of state and the federal labour courts.
Pursuant to the FLL a union has to prove the support of at least, 30 % of the non-exempt work-force to be granted the Representativity Certificate, also, this application should be public in order to allow other labour unions, the right to prove, that they also have the support of 30% of the work-force.
In cases where more than one union has applied for the Representativity Certificate, and there has not been an instance in which one of the unions obtained the minimum support of at least 30% of workers participation then, per the Federal Conciliation and Registration Centre criteria the voting should be repeated. If the participation is of more than 30% then, the union that obtains the 30% of the votes is granted the Representativity Certificate.
The Union that is granted the Representativity Certificate will have the legal right to file before the Labour Courts, a call to strike, to claim the execution of a new CBA with the Company. The next step would be to negotiate a new CBA; and once an agreement is reached, the new CBA and its terms will have to be approved by 50% + 1 of the employees through personal, free, direct, and secret vote. Finally, the CBA must be registered before the Federal Conciliation and Registration Centre. The Representativity Certificate granted to the Union has a validity of 6 months, provided a strike is not started by the Union in relation with the CBA negotiation process, after which, any Union may undergo the certification procedure.
A labour union may lose its right to represent workers in a collective agreement if Federal Conciliation and Registration Centre determines that it no longer represents a majority of the workers, and, in such cases, another union acquires that right.
- Types of Representation
Unions may represent its members at either the national or local levels. In order to gain official recognition, unions must prove before the Federal Conciliation and Registration Centre that the union indeed has at least 30% of the worker´s representation.
Therefore, the Federal Conciliation and Registration Centre will require the union to have the following:
- a certified copy of the bylaws
- in the case of labour unions, the names and addresses of the members and their employers;
- a certified copy of the minutes of the general meeting at which the union was constituted; and
- a certified copy of the minutes of the general meeting at which the board of directors was elected.
Once these documents are submitted, the registering authority (Federal Centre of Conciliation and Labour Registry) has 20 days to issue the registration or deny it. Registration may be denied only in the following circumstances:
- the union does not fulfil the lawful purposes spelled out in Article 356 (i.e., for labour unions, “the study, advancement, and defence” of workers’ interests);
- the union does not have the minimum number of members (20 workers or three employers) required by Article 364; or
- the union fails to submit all the documents required by Article 365.
In those cases where the registering authority has not reached a certification decision within the 60-day period, the prospective union may claim that registration be carried out. If the authority does not act within 3 days of the claims, the registration is automatically granted, and the authority is required to issue the appropriate documentation. However, a problem arises when the above procedure is followed and the authority does not formally grant registration. Article 692, Section IV provides that: Union representatives will accredit their status by means of the certification issued by the registration authority, indicating that the Board of Directors of the union has been registered.
Clearly, if registration has not occurred and the STPS or Labour Courts has not issued a certification then the union will not be able to pursue legal proceedings, which include, for a labour union, calling a strike or entering into a collective agreement. Where certification has been delayed, the union may initiate a writ of amparo suit (juicio de amparo) against the authority that has denied its registration.
A union cannot be dissolved or suspended, nor can its registration be cancelled, by administrative decision. Cancelling the registration requires a legal process that demonstrates that the union has been dissolved or it no longer complies with legal requirements. A union can be dissolved only when it is so agreed by two-thirds of its membership or when the term specified in its bylaws has expired.
Number of Representatives
The FLL does not provide how a union’s board of directors should be constituted, although reference is made to “general,” “internal,” and “recording” secretariats. This information is most commonly contained in the union’s bylaws. Non-Mexican nationals may not be members of the boards of directors of labour unions. The boards of directors must render an account to the full membership at least every 6 months regarding the administration of union funds.
Some labour unions especially the larger ones are divided into sections representing specific groups of workers, work areas, specialties, etc. These sections do not have, as a general rule, their own legal standing and in collective matters must act through the board of directors of the principal union.
Unions are represented by their secretary general or by a person appointed by the board of directors, unless the bylaws provide otherwise. If a member of the board of directors of a labour union is terminated by the employer, or ceases to work for reasons imputable to the employer, the worker will continue to exercise his union duties, except where the bylaws provide otherwise.
The general membership meeting is the supreme decision-making body of a union. The bylaws must specify the manner in which general membership meetings should be convened, the intervals at which they should be held, and the required quorum.
If the board of directors does not hold a general membership meeting as specified in the bylaws, in a timely manner, one-third of the total membership of the union or the section may request that such a meeting be convened within a period of 10 days. If this is not done, in the case of labour unions, the workers may convene the membership meeting. Such a general membership meeting shall be deemed to be valid only if two-thirds of the total membership of the union or the section attend. The decisions adopted must be accepted by 51% of the total union members.
Appointment of Representatives
In order to fulfil the requirements of the 2017 Constitutional Amendment and the obligations assumed by Mexico in relation to the signing and ratification of different international agreements, specifically, Convention 98 of the International Labour Organization, the Federal Labour Reform established a new process to appoint the representatives. The process foresees an election through a direct, personal, free and secret vote. To do so, the bylaws must establish the following:
- the convening must be signed by the authorized people, establishing date, hour, place and any other requirements established;
- the convening has to be published in the union’s locality and in places where there is more concurrency within the workplace, at least 10 days before the vote;
- the place determined for the vote to take place and the documentation and materials have to ensure that the vote will occur in a safe, direct, personal, free and secret way;
- the documentation must specify the town and state of the vote, the position being voted, the symbol of all parties, and the names of the candidates.
- all ballot papers must be signed by two members of the Electoral Commission
- a full list of the union members with voting rights must be updated and published at least three days before the vote takes place:
- a procedure to ensure the identification of the members with voting rights.
If the abovementioned requirements are not fulfilled, the voting process will be invalid and will have no legal effect.
Tasks and Obligations of Representatives
Unions are under a permanent obligation to provide the labour authorities with the required information related to their activities as a union. They are also obliged to communicate to the Registration Authority any changes in the board of directors or amendments to their bylaws, within a maximum of 10 days. They must also inform the Registration Authority, once every three months, about the changes in the union members. The aforementioned obligations can be made through electronic means.
Employees’ Representation in Management
In Mexico, workers have no representation in the company’s management.
Other Types of Employee Representative Bodies
The organization of mixed commissions to fulfil certain social and economic functions can be established in the collective bargaining agreements; the resolutions of said commissions will be executed by the courts when declared mandatory by the parties involved.
Employees also have the right to designate representatives to be part of the mixed commissions (safety and health, profit-sharing, training, productivity and development, and the like), for which they need not be unionized.
The FLL also provides the right to employees to create coalitions, which are temporary accords for the protection of their mutual interests. These possibilities generate the potential that groups of workers could pursue claims collectively before the authorities, although in practice, these actions hardly ever occur, at least at the present time.
