Human Rights Watch sent a letter today to Mexico’s Chamber of Deputies, urging them not to put President Fox's labor law reform proposal to a vote. Instead, we are encouraging the development of a new proposal that would strengthen workers’ rights protections, particularly in two key areas -- freedom of association and pregnancy-based discrimination in hiring.
It has come to our attention that the Abascal Project may soon be voted on in the Commission and then put to a floor vote. We oppose putting the proposal to a vote. Instead, we strongly urge the Commission to reject the Abascal Project and encourage the development of a new proposal that would strengthen workers’ rights protections.
The Abascal Project not only fails to remedy key shortcomings in Mexican labor law, but it weakens existing protections. In doing so, the proposal also violates Mexico’s obligations under international law to protect and promote workers’ human rights. The proposed changes would make it virtually impossible for most workers to exercise their rights to strike, bargain collectively, and join a union of their choosing. The proposal also fails to provide sufficient protections for workers facing pregnancy-based discrimination in hiring.
Additionally, the Abascal Project ignores important recommendations in the 2003 report on Mexico from the Office of the U.N. High Commissioner for Human Rights; key principles of Mexico’s National Human Rights Program, launched by President Vicente Fox in December 2004; and commitments made in a May 2000 ministerial agreement between the United States and Mexico during proceedings under the North American Agreement on Labor Cooperation (NAALC), the labor side agreement to the North American Free Trade Agreement (NAFTA).
Failure to Protect Workers’ Rights to Organize, Strike, and Bargain Collectively
Mexico is a party to several international instruments that require the government to protect workers’ right to freedom of association, including the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (“Protocol of San Salvador”). Similarly, the International Labor Organization’s Declaration on Fundamental Principles and Rights at Work (ILO Declaration) has recognized freedom of association as one of the “fundamental rights” that all ILO members, including Mexico, have an obligation to protect.
The 2003 report of the Office of the U.N. High Commissioner for Human Rights on Mexico recommended “dismantling the regulatory system that inhibits freedom of association in the workplace” and “guaranteeing the following rights: freedom of association, a free and secret vote for workers, and the right to strike.” President Fox’s National Human Rights Program of December 2004 includes related goals. The Abascal Project seems to ignore these objectives. Instead, the proposal would impose onerous new preconditions on workers’ rights to strike, to demand collective bargaining, and to supplant pre-existing unions. If these requirements were adopted, they would effectively ban most independent union supporters from enjoying fundamental workers’ rights.
A major problem in Mexico is the lack of independent unions that can negotiate strong and fair collective bargaining agreements. According to some estimates, roughly 90 percent of all Mexico’s collective bargaining agreements are negotiated by non-independent, pro-government, pro-company unions. These “protection contracts” are generally negotiated without the consent, or even the knowledge, of the majority of workers. The law only requires that twenty workers belong to the negotiating union. The agreements also inhibit the formation of truly independent unions, since new unions must later win an election in which at least half the workforce participates in order to take control of the collective agreements away from the non-independent union. As discussed below, under the Abascal Project, such an election would be next to impossible.
Difficult to Obtain Documents Required
The Abascal Project adds burdensome provisions that would require workers to obtain various certified documents before they could strike, compel their employers to bargain collectively, or call a vote to oust a pre-existing union. Under Mexican law, however, these documents are only available from authorities that have been historically hostile to independent unions: the Labor Ministry in federal matters and local Boards of Conciliation and Arbitration in local ones. The Boards are tripartite bodies, with business and government officials and labor representatives generally hailing from non-independent unions. Therefore, the Boards would likely be reluctant to turn over the needed documents. As a result, under the Abascal Project, independent union supporters could be regularly prevented from being able to exercise their rights to strike, negotiate collectively, or join a union of their choosing.
Limits on Processing Union Election Requests
The Abascal Project would also require labor authorities to process only one request to unseat a pre-existing union at a time. As a result, at the first sign of independent union activity, an employer could collude with a non-independent union to submit a bogus application to prevent a vote with an independent union challenger. Since each request can take years to process, this provision would virtually eliminate the chance of a timely and independent union election.
Prejudicial Disclosure of Independent Union Supporters
Under the Abascal Project, workers would have to present documents containing their names and signatures to the local Boards or federal authorities with a statement expressing their desire to strike or hold an election to replace an existing union before they could engage in such activities. This could have a chilling effect on the exercise of these rights, since it would publicly identify workers who support strike action and independent unions in an environment where such workers often face employer intimidation and retaliation.
In addition, Mexican law allows “exclusion clauses” in labor contracts, which require employers to hire only union members and give unions the right to demand that an employer fire workers who resign or are expelled from the union. These clauses are also regularly invoked by non-independent unions to demand the dismissal of independent union supporters. The identification procedures in the Abascal Project that would force independent union and strike supporters to publicly disclose their identities would, therefore, make them vulnerable to negative repercussions, including firing. Under those circumstances, workers would be reluctant to openly declare their wish to join independent unions or strike. But unless they did so, they would be barred from exercising fundamental workers’ rights under the Abascal Project.
Secret Ballots in Union Elections Undermined
In Mexico, trade union elections to supplant pre-existing unions are often open ballot elections. Workers must publicly declare their union preference in the presence of numerous employer and non-independent union representatives and even, on occasion, hostile hired thugs. Intimidation by these parties has frequently prevented free and fair elections. Mexico has recognized this problem, and in its May 18, 2000, joint declaration with the United States under the NAALC, the government agreed to “promote the use of . . . secret ballot elections in disputes over the right to hold the collective bargaining contract.”
On its face, the Abascal Project addresses this issue. It would amend current law to require that elections to oust pre-existing unions occur only by secret ballot. In practice, however, the new procedural requirements that independent union supporters must fulfill prior to such an election would undermine, if not entirely negate, any benefits of a secret vote.
As discussed, under the Abascal Project, an election to gain workplace representational rights could only occur after workers supporting the vote presented to the relevant Board the requisite legal documents and papers containing their names and signatures. As noted, these requirements would be virtually impossible to meet. As a result, workers would rarely, if ever, get to enjoy their new right to a secret ballot election.
Furthermore, by requiring workers to publicly declare their desire for a vote when they file the election petition, the Abascal Project would create a new opportunity for intimidation prior to a secret-ballot vote. Thus, under the Abascal Project, the intimidation period would simply shift from election day to the period between petition filing and election day.
No Public Registry for Collective Accords and Union Registrations
The 2003 U.N. High Commissioner for Human Rights report on Mexico recommended the creation of an “independent and autonomous” institution to “keep the registry of union organizations and collective contracts.” Similarly, in its May 18, 2000, joint declaration with the United States under the NAALC, Mexico agreed to “continue promoting the registry of collective bargaining contracts in conformity with established labor legislation.” Nonetheless, the Abascal Project fails to create a public registry for collective agreements and union registrations.
The lack of such a public registry becomes a problem when workers seek to form an independent union, following one of two paths for doing so under Mexican law. If there is a pre-existing union, as is often the case, they must call for a union election to gain representational rights for their workplace by filing a petition with the local or federal Board that contains, among other information, the legal name and address of the pre-existing union. Because workers are unable to check with a public registry to determine whether a union exists, they often either follow the wrong procedure or file a petition without the union’s correct name and address. Authorities then dismiss the petition, but through the petition process, the employer and any pre-existing union become aware that independent union organizing is underway and often retaliate against suspected independent union supporters.
Failure to Protect Workers’ Right to Freedom from Sex Discrimination
The ILO Declaration has also recognized the right to freedom from workplace and employment discrimination, understood as including pregnancy-based discrimination, as a fundamental right that all ILO members must protect. The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the ICESCR, and the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women (“Convention of Belém do Pará”), both of which Mexico has ratified, also protect this right. Parties are required to provide effective legislative protection to guarantee the rights in these conventions, yet the Abascal Project does not.
Human Rights Watch documented systematic pregnancy-based discrimination in Mexico’s free trade zones, both post-hire and in the hiring process, in August 1996 and December 1998. In January 1998, the U.S. National Administrative Office also concluded that the practice was widespread. And the U.N. Committee on Economic, Social and Cultural Rights (CESCR) stated in 1999 that it was “deeply concerned about the situation of women workers in the maquiladoras, some of whom are subjected to pregnancy tests upon recruitment and at intervals during work, and are dismissed if found to be pregnant.” Human Rights Watch has recommended clarifying federal legislation to explicitly prohibit requiring proof of pregnancy status as a condition to gain or retain work and to explicitly ban employment and workplace pregnancy-based discrimination.
The Abascal Project only partially addresses these problems. It would amend existing law to explicitly prohibit employers from firing or pressuring a worker to resign due to her pregnancy, but it fails to address pregnancy-based discrimination in the hiring process. This omission is contradictory to President Fox’s National Human Rights Program, which includes a goal “to verify that pregnancy tests are not demanded of women wishing to access employment.” Similarly, it flouts the 1999 CESCR recommendation that Mexico “adopt immediate steps towards the protection of women workers in the maquiladoras, including prohibiting the practice of demanding medical certification that prospective workers are not pregnant and taking legal action against employers who fail to comply.”
For the reasons set forth above, we urge you to reject the insufficient Abascal Project and not put the proposal to a vote. Instead, we encourage the elaboration of a new labor law reform proposal through a truly tripartite process that includes employers, government officials, and independent and non-independent union representatives. This new proposal should remedy the deficiencies of the Abascal Project and improve protections for workers’ human rights.
We will continue to monitor labor law reform developments and would welcome the opportunity to discuss this issue further.
José Miguel Vivanco
Executive Director, Americas Division
Human Rights Watch
Labor Rights and Trade Researcher
Human Rights Watch