Les droits collectifs du travail en Amérique latine et au Mexique

Résumé

L'article présente un panorama général des caractéristiques les plus pertinentes que présentent les droits du travail des pays de la région latino-américaine. Il traite plus spécialement, d'une part, des droits dits collectifs, comprenant la syndicalisation, la négociation collective et la grève, et d'autre part, du cas particulier du Mexique. La première partie dégage quelques traits de l'évolution générale du droit du travail, alors que la seconde porte sur les principales tendances qui se sont manifestées dans la région ces dernières années.

Abstract

This article provides an overview of the current situation and trends in Latin American labour law Systems and a more in-depth examination of collective rights in Mexico, particularly as regards unionization, collective bargaining and strikes.

Latin America is generally treated as a distinct geographical and cultural unit because of its social, political and historical features. However, differences between the states that make up the region are also considered in this article. This allows for a detailed examination of the similarities, differences and trends in the development of labour standards in the different countries of the region.

Despite the inherent difficulties of comparative law studies, the article seeks to explain the evolution, principal characteristics and trends in labour standards in the region, in particular collective rights, in order to provide an overview of the current situation and characteristics of the standards contained in the labour laws of the Latin-American states. The first part of the article focuses on the evolution and characteristics of labour standards. All Latin-American countries have experienced a process of the constitutionalization of labour rights. This first stage of development is followed by the adoption of labour codes and special or secondary laws that treat collective rights issues within one of two basic frameworks. The first is formalist and involves the development of an extensive, detalled regulatory framework for unionization, collective bargaining and strikes. The second, more empirical approach certainly recognizes collective rights, but either regulates them insufficiently or does not regulate them at all.

As regards the principal characteristics of Latin-American labour law in general, and collective rights in particular, there is a gap in both theory and practice between labour law and civil law. The former has largely aimed at eliminating the inequalities and inequities between actors in the world of work, thus emphasizing the social protection function of collective labour standards. A second characteristic of most of the law standards that exist in the region relates to the extensive and detalled codification of labour issues. The third major characteristic of these standards concerns the widening gap between the types of behaviour prescribed by these standards and those observed in dally workplace practices.

Of special importance is the relationship between the various national labour movements and their respective states. Two trends are identified. The first, less frequent, favours the legal recognition of trade union freedom and autonomy without any further regulation of the creation of unions and their internal operation. The second trend is extensive state intervention in and regulation of all aspects of union organization where legislation and interventionist attitudes are a dally reality of relations between actors.

The second part of the article, which deals with ongoing trends, examines the subjects currently being debated in the region by the actors in the world of work. This debate, which concerns the very future of labour law, involves two fundamentally different perspectives. On the one hand, there is the traditional, deep-rooted view that labour standards are a necessary and unique instrument of social justice embodying irrevocable rights that must be protected. On the other hand, there is the perspective in favour of flexibility, based on considerations related to economie development and full employment. According to the latter view, labour laws must be changed to allow firms to become more competitive in the context of globalization.

Evidence of greater flexibility both within firms (e.g., new types of individual and collective contracts and new compensation methods) and outside the firm (e.g., agreements on economie integration, social cooperation, etc.) is then presented for the various countries in the region. These changes highlight the growing importance of international labour law as a supranational instrument which, while not excluding the possibility of change, can minimize its negative impact on workers. Following this examination of the evolution, current characteristics and trends towards either greater protection or flexibility in labour law, be it in general or in terms of particular collective rights, the author sets out his own position on the debate that is currently dividing the industrial relations actors. The author concludes that it is preferable to maintain labour law and its original postulates, that is, the protection of workers, but that it is also important to protect firms, which need an environment that is conducive to their survival and growth. Thus, in order to achieve a proper balance, both labour rights and economie development must be taken into account in any modification to collective labour standards.

Resumen

El artìculo présenta un panorama general de las caracterfsticas mas distintivas que tienen los derechos laborales en la région latinoamericana, haciendo una referencia mas especifica, por un lado, a los denominados derechos colectivos, que incluyen la sindicalizacion, la negociaciòn colectiva y la huelga y, por el otro, el caso de Mexico. Primeramente se presentan algunas caracterfsticas de la évolution del derecho del trabajo, para luego hablar de lo que son las principales tendencias que los ûltimos anos pueden encontrarse en la région.