Section 7. Worker Rights
The law provides for the right of workers to form and join unions, to bargain collectively, and to strike in both the public and private sectors; however, conflicting law, regulations, and practice restricted these rights.
The law requires a minimum of 20 workers to form a union. To receive official recognition from the government, unions must file for registration with the appropriate conciliation and arbitration board (CAB) or the Ministry of Labor and Social Welfare. For the union to be able to perform its legally determined functions, its leadership must also register with the appropriate CAB or the ministry. CABs operated under a tripartite system with government, worker, and employer representatives. Outside observers raised concerns that the boards did not adequately provide for inclusive worker representation and often perpetuated a bias against independent unions, in part due to intrinsic conflicts of interest within the structure of the boards exacerbated by the prevalence of representatives from “protection” (unrepresentative, corporatist) unions.
By law a union may call for a strike or bargain collectively in accordance with its own bylaws. Before a strike may be considered legal, however, a union must file a “notice to strike” with the appropriate CAB, which may find that the strike is “nonexistent” or, in other words, it may not proceed legally. The law prohibits employers from intervening in union affairs or interfering with union activities, including through implicit or explicit reprisals against workers. The law allows for reinstatement of workers if the CAB finds the employer fired the worker unfairly and the worker requests reinstatement; however, the law also provides for broad exemptions for employers from such reinstatement, including employees of confidence or workers who have been in the job for less than a year.
Although the law authorizes the coexistence of several unions in one worksite, it limits collective bargaining to the union that has “ownership” of a collective bargaining agreement. When there is only one union present, it automatically has the exclusive right to bargain with the employer. Once a collective bargaining agreement is in place at a company, another union seeking to bargain with the employer must compete for bargaining rights through a recuento (bargaining-rights election) administered by the CAB. The union with the largest number of votes goes on to “win” the collective bargaining rights. It is not mandatory for a union to consult with workers or have worker support to sign a collective bargaining agreement with an employer. The law establishes that internal union leadership votes may be held via secret ballot, either directly or indirectly.
The government, including the CABs, did not consistently protect worker rights. The government’s common failure to enforce labor and other laws left workers with little recourse regarding violations of freedom of association, poor working conditions, and other labor problems. The CABs’ frequent failure to impartially and transparently administer and oversee procedures related to union activity, such as union elections and strikes, undermined worker efforts to exercise freely their rights to freedom of association and collective bargaining.
On February 24, labor justice revisions to the constitution were enacted into law. The constitutional reforms replace the CABs with independent judicial bodies, which are intended to streamline the labor justice process. Observers contended that additional changes to the labor law were necessary to provide for the following: workers are able to freely and independently elect union representatives, there is an expedited recount process, unions demonstrate union representativeness prior to filing a collective bargaining agreement, and workers to be covered by the agreement receive a copy prior to registration–thus eliminating unrepresentative unions and “protection” contracts.
By law penalties for violations of freedom of association and collective bargaining laws range from 16,160 pesos ($960) to 161,600 pesos ($9,640). Such penalties were rarely applied and were insufficient to deter violations. Administrative and/or judicial procedures were subject to lengthy delays and appeals.
Workers exercised their rights to freedom of association and collective bargaining with difficulty. The process for registration of unions was politicized, and according to union organizers, the government, including the CABs, frequently used the process to reward political allies or punish political opponents. For example, it rejected registration applications for locals of independent unions, and for unions, based on technicalities.
The country’s independent unions and their legal counsel, as well as global and North American trade unions, continued to encourage the government to ratify the International Labor Organization (ILO) Convention 98 on collective bargaining, which it delayed doing despite removal of the main obstacle to compliance in the 2012 labor law reform, the exclusion clause for dismissal. By ratifying the convention, the government would subject itself to the convention’s oversight and reporting procedures. Ratification would also contribute, according to the independent unions, to ensuring that the institutions that are established as a result of the labor justice reform are, in law and practice, independent, transparent, objective, and impartial, with workers having recourse to the ILO’s oversight bodies to complain of any failure.
Companies and protection unions (unrepresentative, corporatist bodies) took advantage of complex divisions and a lack of coordination between federal and state jurisdictions to manipulate the labor conciliation and arbitration processes. For example, a company might register a collective bargaining agreement at both the federal and the local level and later alternate the jurisdictions when individuals filed and appealed complaints to gain favorable outcomes. Additionally, union organizers from several sectors raised concerns regarding the overt and usually hostile involvement of the CABs when organizers attempted to create independent unions.
Protection unions and “protection contracts”–collective bargaining agreements signed by employers and these unions to circumvent meaningful negotiations and preclude labor disputes–was a problem in all sectors. The prevalence of protection contracts was due, in part, to the lack of a requirement for workers to demonstrate support for collective bargaining agreements before they took effect. Protection contracts often were developed before the company hired any workers and without direct input from or knowledge of the covered workers.
Independent unions, a few multinational corporations, and some labor lawyers and academics pressed for complementary legislation, including revisions to the labor code that would prohibit registration of collective bargaining agreements where the union could not demonstrate support by a majority of workers or where workers had not ratified the content of the agreements. Many observers noted working conditions of a majority of workers were under the control of these contracts and the unrepresentative unions that negotiated them, and that the protection unions and contracts often prevented workers from fully exercising their labor rights as defined by law. These same groups advocated for workers to receive hard copies of existing collective bargaining agreements when they are hired.
According to several NGOs and unions, many workers faced procedural obstacles, violence, and intimidation around bargaining-rights elections perpetrated by protection union leaders and employers supporting them, as well as other workers, union leaders, and vigilantes hired by a company to enforce a preference for a particular union. Some employers attempted to influence bargaining-rights elections through the illegal hiring of pseudo employees immediately prior to the election to vote for the company-controlled union.
Other intimidating and manipulative practices were common, including dismissal of workers for labor activism. For example, there were reports that a garment factory in Morelos failed to halt workplace sexual harassment and sexual violence and instead fired the whistleblowers that reported the problem to management.
Independent labor activists reported the requirement that the CABs approve strikes in advance gave boards power to show favoritism by determining which companies to protect from strikes. Few formal strikes occurred, but protests and informal work stoppages were common.
The law prohibits all forms of forced or compulsory labor, but the government did not effectively enforce the law. Penalties for conviction of forced labor violations range from five to 30 years’ imprisonment and observers generally considered them sufficient to deter violations.
Forced labor persisted in the agricultural and industrial sectors, as well as in the informal sector. Women and children were subject to domestic servitude. Women, children, indigenous persons, and migrants (including men, women, and children) were the most vulnerable to forced labor. In November authorities freed 81 workers from a situation of forced labor on a commercial farm in Coahuila. In June federal authorities filed charges against the owner of an onion and chili pepper farm in Chihuahua for forced labor and labor exploitation of 80 indigenous workers. The victims, who disappeared following the initial complaint to state authorities, lived in unhealthy conditions and allegedly earned one-quarter of the minimum wage.
Also see the Department of State’s Trafficking in Persons Report at www.state.gov/j/tip/rls/tiprpt/.
The constitution prohibits children under age 15 from working and allows those ages 15 to 17 to work no more than six daytime hours in nonhazardous conditions daily, and only with parental permission. The law requires that children under age 18 must have a medical certificate in order to work. The minimum age for hazardous work is 18. The law prohibits minors from working in a broad list of hazardous and unhealthy occupations.
The government was reasonably effective in enforcing child labor laws in large and medium-sized companies, especially in the maquila sector and other industries under federal jurisdiction. Enforcement was inadequate in many small companies and in agriculture and construction and nearly absent in the informal sector, in which most child laborers worked.
At the federal level, the Ministry of Social Development, Attorney General’s Office, and National System for Integral Family Development share responsibility for inspections to enforce child labor laws and to intervene in cases in which employers violated such laws. The Ministry of Labor is responsible for carrying out child-labor inspections. Penalties for violations range from 16,780 pesos ($1,000) to 335,850 pesos ($20,000) but were not sufficiently enforced to deter violations.
In December 2016 the CNDH alerted national authorities to 240 agricultural workers, including dozens of child laborers, working in inhuman conditions on a cucumber and chili pepper farm in San Luis Potosi after state authorities failed to respond to their complaints.
According to the 2015 INEGI survey, the most recent data available on child labor, the number of employed children ages five to 17 remained at 2.5 million, or approximately 8.4 percent of the 29 million children in the country. Of these children, 90 percent were engaged in work at ages or under conditions that violated federal labor laws. Of employed children 30 percent worked in the agricultural sector in the harvest of melons, onions, cucumbers, eggplants, chili peppers, green beans, sugarcane, tobacco, coffee, and tomatoes. Other sectors with significant child labor included services (25 percent), retail sales (23 percent), manufacturing (14 percent), and construction (7 percent).
The law prohibits discrimination with respect to employment or occupation regarding “race, nationality age, religion, sex, political opinion, social status, handicap (or challenged capacity), economic status, health, pregnancy, language, sexual preference, or marital status.”
The government did not effectively enforce these laws and regulations. Penalties for violations of the law included administrative remedies, such as reinstatement, payment of back wages, and fines (often calculated based on the employee’s wages), and were not generally considered sufficient to deter violations. Discrimination in employment or occupation occurred against women, indigenous groups, persons with disabilities, LGBTI individuals, and migrant workers.
e. Acceptable Conditions of Work
On November 21, the single general minimum wage rose from 80.04 pesos per day ($4.76) to 88.36 pesos per day ($5.26), short of the official poverty line of 95.24 pesos per day ($5.67). Most formal-sector workers received between one and three times the minimum wage. The tripartite National Minimum Wage Commission, whose labor representatives largely represented protection unions and their interests, is responsible for establishing minimum salaries but continued to block increases that kept pace with inflation.
The law sets six eight-hour days and 48 hours per week as the legal workweek. Any work over eight hours in a day is considered overtime, for which a worker is to receive double pay. After accumulating nine hours of overtime in a week, a worker earns triple the hourly wage. The law prohibits compulsory overtime. The law provides for eight paid public holidays and one week of paid annual leave after completing one year of work. The law requires employers to observe occupational safety and health regulations, issued jointly by the Ministry of Labor and Social Welfare and the Institute for Social Security. Legally mandated joint management and labor committees set standards and are responsible for overseeing workplace standards in plants and offices. Individual employees or unions may complain directly to inspectors or safety and health officials. By law workers may remove themselves from situations that endanger health or safety without jeopardy to their employment.
The Ministry of Labor is responsible for enforcing labor laws and conducting inspections at workplaces. In 2015, the most recent year for which data were available, there were 946 inspectors nationwide. This was sufficient to enforce compliance, and the ministry carried out inspections of workplaces throughout the year, using a questionnaire and other means to identify victims of labor exploitation. Penalties for violations of wage, hours of work, or occupational safety and health laws range from 17,330 pesos ($1,030) to 335,940 pesos ($20,020) but generally were not sufficient to deter violations. Through its DECLARALAB self-evaluation tool, the ministry provided technical assistance to almost 4,000 registered workplaces to help them meet occupational safety and health regulations.
According to labor rights NGOs, employers in all sectors sometimes used the illegal “hours bank” approach–requiring long hours when the workload is heavy and cutting hours when it is light–to avoid compensating workers for overtime. This was a common practice in the maquila sector, in which employers forced workers to take leave at low moments in the production cycle and obliged them to work in peak seasons, including the Christmas holiday period, without the corresponding triple pay mandated by law for voluntary overtime on national holidays. Additionally, many companies evaded taxes and social security payments by employing workers informally or by submitting falsified payroll records to the Mexican Social Security Institute. In 2013, the latest year for which such data are available, INEGI estimated 59 percent of the workforce was engaged in the informal economy.
Observers from grassroots labor rights groups, international NGOs, and multinational apparel brands reported that employers throughout export-oriented supply chains were increasingly using methods of hiring that deepened the precariousness of work for employees. The most common practice reported was that of manufacturers hiring workers on one- to three-month contracts, and then waiting for a period of days before rehiring them on another short-term contract, to avoid paying severance and prevent workers from accruing seniority, while maintaining the exact number of workers needed for fluctuating levels of production. This practice violates Federal Labor Law and significantly impacted workers’ social and economic rights, including elimination of social benefits and protections, restrictions on worker’s rights to freedom of association and collective bargaining, and minimal ability for workers, especially women, to manage their family responsibilities. Observers noted it also increased the likelihood of work-related illness and injury. Combined with outsourcing practices that made it difficult for workers to identify their legally registered employer, workers were also more likely to be denied access to justice.
Private recruitment agencies and individual recruiters violated the rights of temporary migrant workers recruited in the country to work abroad, primarily in the United States. Although the law requires these agencies to be registered, they often were unregistered. The Labor Ministry’s registry was outdated and limited in scope. Although a few large recruitment firms were registered, the registry included many defunct and nonexistent midsized firms, and few if any of the many small, independent recruiters. Although the government did not actively monitor or control the recruitment process, it reportedly was responsive in addressing complaints. There were also reports that registered agencies defrauded workers with impunity. Some temporary migrant workers were regularly charged illegal recruitment fees. According to a 2013 study conducted by the Migrant Worker Rights Center, 58 percent of 220 applicants interviewed had paid recruitment fees; one-half did not receive a job contract and took out loans to cover recruitment costs; and 10 percent paid fees for nonexistent jobs. The recruitment agents placed those who demanded their rights on blacklists and barred them from future employment opportunities.
News reports indicated there were poor working conditions in some maquiladoras. These included low wages, contentious labor management, long work hours, unjustified dismissals, the lack of social security benefits, unsafe workplaces, and the lack of freedom of association. Many women working in the industry reported suffering some form of abuse. Most maquilas hired employees through outsourcing with few social benefits.