Initiative Labor Reform 2016

In recent days the President of the Mexican Republic, Enrique Peña Nieto, presented to the Senate a Reform Initiative for both the Constitution and the Federal Labor Law with a view to the following objectives:

1.- Eliminate the Federal Conciliation and Arbitration Boards so that they are from now on Labor Courts, as organs that are part of the Judicial Power, that resolve labor conflicts.

2.- Create an instance of mandatory mediation in individual labor disputes, before going to court, which must be carried out before the Mediation Centers at the local level and before a decentralized agency at the federal level, which is pending to be created.

3.- To leave in charge of a federal decentralized organism the registration of all collective labor contracts and union organizations throughout the Mexican Republic.

4.- Establish new requirements for the deposit and registration of collective bargaining agreements, in such a way that it is previously established that the union has the support of the workers and that they know the content of said agreement.

5.- Update the rules necessary to carry out the presentation of the workers’ counting test, necessary to determine which union has the majority of workers to be the holder of a collective bargaining agreement.

We applaud the proposal to become part of the Judiciary the Labor Courts as we consider it convenient to depoliticize the bodies responsible for providing justice in labor matters. The Labor Courts by now depending on the Judiciary and not, as it has been from its origin, on the Executive Power, will respond to its true nature which is to impart justice, being consistent with our republican system of separation of powers and forming part of a system in which a training and career is required in order to access and grow within a judicial body. The only thing that, in our opinion, should be included of the Reform Initiative was the elimination the distinction between the federal and local courts; despite being a federal law that regulates the right to work, what has been happening in practice is being able to find different criteria in the Conciliation and Arbitration Boards of the federal entities despite all being governed by the same law.

On the other hand, we consider it absurd and retrograde to create a mediation instance of a mandatory nature. In the first place, because it is left in charge of this instance, again, of the Executive Power, that is to say that the Reform does not completely depoliticize labor matters and, secondly, because it does not comply with the nature and purpose of a labor court that is imparting justice not to mediate the parties. Mediation is, by its very nature, an alternative means of resolving conflicts that must be present at any moment and procedural stage of the conflict, so making it mandatory makes us understand, implicitly, that there is no true Rule of Law with specialized courts that resolve what is asked of them and not in which the parties are forced to straighten up themselves to avoid going to the judicial body; people do not go to a court there to conciliate but to request that a conflict be resolved, which does not mean that conciliation should not be sought, however it is very different to seek the understanding than to force conciliation.

Likewise, we return to see the political nature of the reform by claiming to have control, through a decentralized agency, of the processing and registration of all collective bargaining agreements and unions throughout the Mexican Republic. This has been a vice since the origin, in which the Government has found in the unions a great power of control to get to form alliances outside Labor Law.

Finally, establishing new requirements to carry out the signing of a collective bargaining agreement is only combating the effect and not the origin of the practice that is to be eliminated, that is to say, the protection unions or company union (sindicato blanco) that they do not really represent the interests of the workers of a company. We have insisted in various forums that the origin of this practice has been the lack of an effective collective procedure, especially as regards the strike by signing a collective bargaining agreement, since in a notice of strike it is not required that the will of the striking workers be previously certified, and it is until the strike is declared out when it can be demanded and known if it really was the intention of the workers to go to it. Faced with a strike procedure as absurd and precarious as it is with which we have, companies have been forced to enter into contracts of protection with unions not for the purpose of violating the rights of workers, but to prevent a union from reaching extort and affect the productivity of the company through a strike, which would affect not only the employer but also workers who would have to suspend work without knowing the strike procedure or any union interest.

In conclusion, the goodness of the initiative is to become part of the Judiciary the bodies that provide justice in labor matters, however it still wants to have control, by the Government, of labor disputes to force to go to a mediation instance before the same , as well as the constitution and registration of unions and collective bargaining agreements, without addressing the cause of the problem that is that the union has the active legitimacy to enforce collective rights and not workers through a coalition, which does not respond to the type of State that the Government advocates, which is that of a State based on the Rule of Law, democratic and respecting trade union’s and association freedom.

We will be on the lookout and participating in various academic, employers, trade unions and authorities forums to make our opinions to the effect that this proposed reform initiative culminates congruently with the intention embodied in the statement of reasons for it, which is to establish rules for the deposit and, especially, for the strike by signing a collective bargaining agreement, as well as, to prosecute the Labor Courts and establish rules for the submission of the counting test.