Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Update: On October 30, 2018, Mexico’s president signed the ratification of ILO’s Convention 98. It will now take effect on October 30, 2019.
On September 20, 2018, the High Chamber of the Mexican Congress approved a bill to ratify the International Labour Organization’s Convention 981 on the right to organize and to bargain collectively. With this approval, the bill now moves to the federal executive branch, which is expected to ratify the Convention.
Among the guarantees contained in Convention 98 is the workers’ right to freedom of association with respect to their employment, and to be protected from anti-union discrimination. Chiefly, this international instrument seeks to prevent employers from requiring their workers to join a union or to relinquish union membership as a condition of employment. It also seeks to avoid employer interference over the incorporation, hiring and operation of union organizations. Actions considered “interference” include an employer's implementing measures to control unions, such as helping form the unions or supporting them financially by paying the union fees.
Convention 98 requires governments to establish adequate mechanisms to guarantee workers’ right to unionize. This mandate is consistent with Mexico’s last constitutional reform, which requires the formation of a federal agency to be in charge of registering all collective bargaining agreements (CBAs) and union organizations and managing related administrative processes. Moreover, Convention 98 requires employers to establish sufficient measures to protect workers’ right to organize. To that end, under Convention 98, admission clauses contained in CBAs will remain valid and enforceable. These clauses require employers to hire workers only from unions that are parties to the CBAs. Conversely, exclusion clauses in CBAs will no longer be valid. Such clauses, which were valid prior to the labor law reform in 2012, require employers to terminate workers who relinquish their membership with the union.
Also consistent with Mexico’s recent constitutional reform, Convention 98 prohibits employers from unilaterally selecting the contracting union. Under Mexico’s constitutional reform, before the parties of a CBA can file an agreement, or a union can execute a CBA or invoke a strike, the parties must prove that the union is the workers’ representative (i.e., the union was elected to represent the workers through a personal, free and secret vote), and that the related documents have been properly executed, registered and filed. The legislature has signaled that these requirements will be incorporated into the Federal Labor Law in a subsequent reform.
Convention 98 will be enforceable and applicable to all employers after 12 months from the date the ratification is officially registered and published. We believe this is a good time for employers in Mexico to analyze their current union strategies, assess and strengthen their relationship with the unions that are parties to their CBAs, as well as explore options to avoid conflicts with unions.
1 The text to the ILO’s “Right to Organise and Collective Bargaining Convention, 1949 (No. 98)”, which was adopted in Geneva in 1949, is available on the ILO’s website at https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO:12100:P12100_INSTRUMENT_ID:312243:NO.