Ratification of the International Labor Organization’s Agreement 98 by the Mexican Senate, regarding the Right of Association and Collective Bargaining
Last Thursday, September 20th, the Mexican Senate ratified the International Labor Organization’s (the “ILO”) Agreement regarding the Right of Association and Collective Bargaining, also known as the agreement 98 of such Organization (the “Agreement”).
Due to the ratification of such Agreement, the provisions contained therein will be considered as an existing and valid Law in Mexico. That said, some measures will be taken in order to increase the protection of union rights of the workers, regarding the right to freely organize into unions. That is to say, the workers will have an effective union freedom in order to choose which union they want to be affiliated to, without any interference of the employer in such decision.
Among its whereases, in order to ensure the effective union freedom of the workers, two principal obligations are to be taken by the employers:
- Prohibition to hold the employment of a worker to his union affiliation: The Agreement provides that the employers cannot condition the work of a person by its union affiliation, that is to say, the permanence or exclusion of the worker cannot be dependent to his belonging or not to a particular union.
- Prohibition of dismissal because of trade-union affiliations: The Agreement also provides an express prohibition to the employers to dismiss their workers by virtue of their labor affiliation or their involvement in a particular union.
On the other hand, the Agreement in its Article 2, provides that the workers and employers organizations must have an adequate protection against any act of interference in matters related to their constitution, operation or administration.
Additionally, it is established that union fees can only be paid to the unions by the workers, and it is essential that the employer rely on worker´s consent to be able to deduct and transfer such fees from the salaries and perceptions of the unionized workers. In other words, the payment of such fees must be voluntary.
Finally, it is important to mention that all Mexican legal provisions that are contrary to such Agreement will no longer be valid and shall be inapplicable. The provisions of the article 395 of the Federal Labor Law, which directly contradict the provisions of the Agreement, serve as an example of the foregoing. Said article provides that: “In the Collective Agreement, it can be established that the employer will exclusively accept as workers those who are members of the contracting trade-union…”, which is knowns as the “Exclusion Clause” of the Collective Labor Agreements.
Thus, different legal provisions shall be reformed un order to validate the provisions of the Agreement with the applicable legislation in Mexico, particularly, the Federal Labor Law.