Last Thursday, September 20, 2009, the Mexican Senate ratified the Convention on the Right to Organize and Collective Bargaining of the International Labor Organization (the “ILO”), also known as Convention 98 of the ILO (the “Convention”).
By virtue of the ratification of said Convention, the provisions contained therein shall be considered as law in force in Mexico. Thus, measures will be taken to increase the protection of workers’ freedom of association, i.e., workers will have effective freedom of association to choose which union they want to join without any interference from the employer in such decision.
Thus, in order to ensure the effective freedom of association of workers, two main obligations were established for employers:
1) Prohibition of subjecting a worker’s employment to union membership: The Convention establishes that employers may not make a person’s employment conditional on union membership, i.e., the permanence or exclusion of a worker cannot be subject to whether or not he or she belongs to a particular union.
2) Prohibition of dismissal due to union membership: The Convention also establishes an express prohibition for employers to dismiss workers due to their union membership or participation in a particular union.
On the other hand, Article 2 of the Convention establishes that all workers’ and employers’ organizations shall enjoy adequate protection against any act of interference by either of them with the other in matters relating to their constitution, operation or administration.
In addition, it is established that union dues may only be paid to labor unions by the workers themselves, and it is essential that the employer has the employee’s consent in order to deduct and transfer such dues from the salaries and wages of unionized workers. In other words, the payment of such dues must be voluntary.
Finally, it is important to mention that by virtue of the Agreement, all Mexican legal provisions that are contrary to the Agreement shall cease to be in force and shall be inapplicable. An example of this is Article 395 of the Federal Labor Law, which contradicts the provisions of the Convention. Said article establishes that: “the Collective Bargaining Agreement may establish that the employer will only admit as workers those who are members of the contracting union (…)”, which is known as the “Exclusion Clause” of the Collective Bargaining Agreements.
In view of the foregoing, it is expected that various legal provisions will be amended to bring the provisions of the Convention into line with applicable Mexican legislation, particularly the Federal Labor Law.
