Employment tribunal cases rise following the ending of unlawful fees

Sir Brendan Barber, Chair of ACAS.

From the Morning Star, January 2nd, 2018

The number of employment tribunal claims shot up in the months after fees were declared unlawful, the head of the conciliation service has revealed.

Sir Brendan Barber, chairman of ACAS, said demand for its early conciliation service rose by 20 per cent over the two months after July’s Supreme Court decision.

There was a 60 per cent jump in tribunal claims compared with the same period a year earlier.

Sir Brendan said the court ruling had proved a “significant outcome” for those who argued that tribunal fees were a barrier to accessing justice.

The Supreme Court upheld a challenge by Unison that the charges were discriminatory.

Sir Brendan predicted there could be “challenging disputes” in the public sector in 2018 because of continuing tensions over pay not keeping up with inflation.

He said pay will be high on the agenda this year as all large employers will have to publish the differences between men and women’s pay in April.

In a new year blog, he said: “Right across the economy, living standards are facing a squeeze.

“As was recognised in the new industrial strategy recently, improving the UK’s productivity is the key challenge that can deliver higher living standards.

“Next month will see the end of the consultation period on the Financial Reporting Council’s new corporate governance code, which includes guidance around how companies can ensure workers have a greater voice in boardrooms.

“This could herald a new recognition of the importance of workplace relations in our economic performance.”

Tribunal fees of up to £1,200 were introduced by then lord chancellor Chris Grayling in 2013. In January last year official figures showed that the number of claims had fallen by a staggering 70 per cent.

Unison twice fought unsuccessfully for a judicial review and lost an appeal before the Supreme Court finally ruled in its favour.

In their ruling, the judges suggested that ministers had infringed Magna Carta, which did not prohibit court fees but offered “a guarantee of access to courts which administer justice promptly and fairly.”

By Conrad Landin and Alan Jones

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Samsung & McDonald’s among multinationals that flout human rights

The right to join a trade union and the right to collective bargaining are basic, human rights recognised by the UN International Labour Organisation.

Yet many well-known multi-national companies do not recognise trade unions, and do not negotiate with trade unions on pay and working conditions.

The International and European Trade Union Confederations (ITUC and ETUC) are joining forces for Human Rights Day (December 10) to name and shame two multi-national brands and household names that refuse to negotiate with trade unions.

The ITUC & ETUC is naming and shaming:

Samsung – has a no-union policy in its factories and workplaces, and intervenes to prevent the formation of unions at its suppliers. Samsung accumulates billions in profits at the expense of its workers. It has a well‐documented history of labour abuses in its supply chain – from union busting, poverty wages, insecure and unsafe work, to forced overtime, informal work and modern slavery.

Workers are working in such distressed circumstances that in some countries the company has had to remodel its dormitories to prevent employees from committing suicide. It is time for the Giant Tech to ‘End Corporate Greed’ and guarantee a fair living wage and trade union participation and representation for its workers.

McDonald’s – the fast food giant does not bargain with a trade union over working conditions for workers in the UK – but it does in Denmark, France and Germany. In Denmark and Germany the collective agreements cover franchised stores as well as well as McDonald’s own corporate stores.

With the European Commission, International Monetary Fund, and other institutions increasingly recognising the need for wage increases to drive economic growth, and tackle inequality, the right to collective bargain is vital not only for working people, but for the economy and social justice.

“There should be no place in a modern economy for companies that do not negotiate with trade unions” said Luca Visentini, General Secretary of the ETUC. “Collective bargaining between employers and trade unions is the best way to get sensible pay rises that benefit workers, company productivity and the economy as a whole.”

“Samsung and McDonald’s like to promote themselves as modern, family-friendly brands, but their attitude to trade unions is strictly 19th century” said Sharan Burrow, General Secretary of the ITUC. “We will not rest until workers get a fair deal in these companies.”

Thanks to Barry Camfield.

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SNP MP Challenges Taylor Report & Zero Hours Contracts

SNP MP and CTUF supporter Chris Stephens is to make a bid to outlaw zero hours contracts in the New Year.

The Glasgow South West MP told CTUF earlier this week that he is to introduce a bill in the House Of Commons in 2018 aimed at protecting employment rights especially in in the hospitality industry and particularly young workers, as well as those employed in the gig economy.

His bill will state that a worker could only be employed on zero hour terms where there was a specific agreement with their trade union.

Stephens said the plan would outlaw the use of such contracts which lets firms hire staff with no obligation to guarantee any minimum hours.

Employers would also become legally responsible, under the bill, to ensure a worker is paid if their sub-contractor goes bust or absconds.

Chris also told CTUF he will challenge the Government’s Taylor report which has been criticised by unions.  He said his bill would ensure that “anyone doing paid work is treated as an employee with full rights to holiday pay and other benefits”.

He said the bill is aimed at energising trade unions, especially young workers who are organising in sectors where union density is low.

“It’s a direct response to, and a challenge to, the Taylor report findings and it demonstrates that there is a better way of delivering workplace protection” says Chris.

“This bill will drive up living standards and pay in sectors of the economy where the minimum wage is dominant.”

 

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TUC Campaign On Working Time: Don’t let Johnson and Gove scrap our working time rights

Revelations in the media that Boris Johnson and Michael Gove have teamed up to begin an assault on workers rights have leaked out.

The Prime Minister promised that employment rights would be protected  – but she needs to face down a Brextremist ministerial plot to scrap the Working Time Directive in the UK, or millions of workers could lose their paid holidays, face even longer working weeks, lose rest breaks at work, and breaks between shifts as well as other protections for women and young people.

No-one voted for Brexit to lose out on holidays, or to hand power over to bad bosses.

The Sunday Times and Sun have reported plans by ministers – including Michael Gove and Boris Johnson – to scrap the Working Time Directive after Brexit. That law underpins our rights to reasonable hours, breaks and holidays.

It’s long been a target of the hard right, who want to give bosses even more power over workers.

Losing the protections of the directive means 7 million workers could lose rights to paid holidays (4.7 million of them women, and many on zero-hours or part-time contracts). Even more could be forced by bosses to work more than 48 hours a week. Others could lose guaranteed lunch and rest breaks.

We had holiday rights before the EU, but not to the same levels – the Working Time Directive gave nearly five million women paid holidays for the first time.

This is a straight-up attack on our rights at work. The Prime Minister promised that our working rights would be protected after Brexit. Now is the time for her to keep her word, not give in to hard-Brexit extremists in her own cabinet.

If she won’t stick to her promises now, millions will find work less worker-friendly after Brexit. And it’ll open the floodgates for the hard-brexiteers to cut back even more of our employment rights as they seek to make Britain a “poundland” low regulation tax haven.

Sign the TUC Petition here.

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Mexico: A Grotesque Labour Reform Initiative

By Arturo Alcalde Justiniani, La Jornada, 9th December

Just two days ago, labour reform initiatives were introduced in the Mexican Senate,  both to the Federal Labour Law and to the new body responsible for the registration of unions, collective agreements and conciliation, containing rules – even more absurd and grotesque than we feared – that fundamentally change the content and meaning of the constitutional labor reform approved last February.

Apparently, the Federal Executive that drafted these initiatives in the shadows, decided not to pay the political cost of the proposal and thus protect its candidate Meade, knowing in advance the indignation that the proposal would cause. Thus, this infamous task was foisted on two senators who hold themselves out as union leaders: Tereso Medina Ramírez of the Confederation of Workers of Mexico (CTM) and Isaias González Cuevas of the Revolutionary Confederation of Workers and Campesinos (CROC). This maneuver renders the exercise of collective labour rights impossible and damages the individual rights of all working men and women.

Confirming the concern of academics, specialists and democratic trade unionists, on which we have commented in these pages on several occasions, the initiatives that we have now seen follow the proposal of the corporate lawyers who are beneficiaries of the dirty business of employer protection contracts. Reading them, we can confirm that they violate the constitutional reform that they pretend to implement, and that they clearly contravene the international conventions to which our country is bound before the International Labour Organization.

Among other injuries, the initiatives contain the following:

  1. Labor rights are completely nullified by allowing free subcontracting (outsourcing), by eliminating the articles and rules created to regulate in the 2012 labor law reform. As feared, it will be possible to resort to  sub contracting complying only with the minimum legal rights, which is justified by the need to create more jobs. There will be no limitations beyond those agreed to between the subcontractor and the contracting employer, whose responsibility is disguised. The work becomes a commodity whose price and conditions will be freely agreed in the commercial contract. Companies that want to outsource their entire workforce so that they cannot be subjected to a strike demand – such as Bancomer, Walmart and many others – are fully protected.
  2. The important advance in the constitutional reform requiring that the workers be consulted by a secret ballot prior to the signing of a collective contract is simply ignored, despite the fact that the government made a commitment to the international community to end employer protection contracts. This leaves the employer practically free to continue choosing the union of its choice, creating  insurmountable obstacles for those unions that legitimately claim this recognition. We return to the problems of the past, now presented in a more sophisticated way. There is not even a mention of the secret ballot as a prerequisite to the signing of the contract
  3. The concession to the business sector is confirmed so that the new entity for registering trade unions and collective agreements remains in the hands of corrupt unions and the employers themselves. Four representatives of each group be part of its governing body; thus, the director of this supposedly autonomous institute is relegated to such a low level that s/he does not even have the right to vote in the governing body. The control is worse than under the present conditions.  We return to the tripartism whose suppression justified the constitutional reform.
  4. The rules established in the General Law of Transparency and Access to Public Information, published in May 2015, are violated, among them, the provisions established in Article 78 that oblige the authority to make available to the public and keep updated the union documents and contracts.  The initiative intends to restrict this right merely to public summaries and indexes. The error is so elementary that it ignores the new general law and continues to make reference to the previous one.
  5. The initiatives incorporate the request of the airlines to limit the freedom of association and collective bargaining of trade unions, among them, the democratic associations of flight attendants (ASSA) and pilots (ASPA), as the airline companies Interjet and Volaris repeatedly requested, so that these workers cannot demand the control of the collective bargaining agreements for their own unions.
  6. The current guarantees that notice of dismissal must be given in writing and according to procedure are canceled, and procedural rules are set that leave the workers defenseless against the terms granted to the employers.
  7. To give employers a way to register collective agreements that do not comply with the legal requirements, a mechanism is created to allow for effective or automatic authorization when the authority does not respond in time.

Conclusion: An initiative of this kind is an attack on the most basic human and labor rights of working people. The response and mobilization of the democratic sectors of the country is urgently needed to prevent this infamy.

This week the rights of the CTM and the CROC were suspended by the International Trade Union Confederation (ITUC), the largest organization in the world, for acting against its statutes; they lose a voice and a vote, and their expulsion will be is addressed at the next ITUC Congress in December 2018. There is no doubt that these centers are a national and global shame.

See CTUF blog on the suspension of DTM and CROC by clicking here.

Thanks to Ben Davis of the United Steelworkers

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UPDATED: Taylor ‘Gig Workers’ Reforms Delayed – Areas For Consultation

Matthew Taylor – report shelved until next year because of Brexit

Proposed reforms to employment rights for ‘gig workers’ proposed by Mathew Taylor in his report earlier this year have been delayed until 2018 – a sure sign that Brexit is sucking up much of Government time to deal with domestic policy.

Reports suggested that the Government would say before the end of the year, what if any of Taylor’s report they intended to implement – notably in regard to precarious work.

Unions had criticised Taylor’s report as disappointing and a missed opportunity and disappointing.

But now the report has been shelved amid growing concern that any reforms to give more rights to gig workers would face parliamentary opposition from the right-wing of the Conservative Party, especially from Brexiteers who are looking to completely break with EU employment rights in order to turn the UK into a low wage, low pay, ‘poundshop’ Britian.

Back channel indications were that following the number of high profile court cases (Uber, Pimlico Plumbers and others) that employments rights would be announced would make gig workers such as ride hailing drivers, couriers and drivers national minimum wage, sick pay and holiday pay.

Indications were that the ending of the abuse of the ‘Swedish Derogation’ which allows companies to pay agency workers rates of pay below the rate for the job for the duration of their assignment

Mrs. May appointed Taylor in October 2016 and told the nation she would “be driven not by the interests of the privileged few” but people such as those “who have a job but you don’t always have job security” and five months after the reports publication Margot James, the business minister, told parliament: “I am determined that we consider the report very carefully and we will respond fully by the end of the year.”

But now the BEIS Department is saying: “Matthew Taylor’s review threw up some complex ideas and was wide-ranging. It is quite right the government gives due attention to the recommendations.”

Taylor confirmed this week that the response is now expected early next year. He said: “I would rather it was later and stronger rather than earlier and weaker.”

With the second phase of Brexit negotiations expected to be even tougher and taking up much of Government’s time the report – weak as it is – could be left on the shelf for longer than Taylor expects.

UPDATE: According to information recived by CTUF the current status of the Taylor reports is that the Government response ‘most likely’ in mid January and is expected to be general response to Taylor’s recommendations.

Also likely to be four consultations – which may be announced simultaneously or be staggered on the following: Employment status; Agency workers – probably an ‘open consultation’ on whether to retain Swedish Derogation. Also whether enforcement powers should be broadened; Transparency – issues covered may include the right to written statement from day one; pay premiums for non-contracted hours; right to request guaranteed hours contract.
Enforcement is likely to include: penalties that can be awarded by Employment Tribunals; penalties for aggravated and repeat offences.
 
It is suggested that that there is potential for licensing in ‘pilot sectors’ including the garment industry, nail bars and car washes.
 

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Mexico sees EU trade deal done by end of December

Mexico and the European Union are working to wrap up negotiations on a new version of their 17-year-old trade deal by the end of the month, the Mexican economy ministry has said.

The two sides have been in talks on updating the trade deal since May 2016.

After making rapid progress on issues including market access and intellectual property in their sixth round of talks, negotiators will now hold a series of video conferences in a final push to conclude the deal, the Mexican side said.

They will meet again in Brussels from December 11 to “outline a possible conclusion of negotiations” the following week, when Mexican Economy Minister Ildefonso Guajardo travels there to meet with EU Trade Commissioner Cecilia Malmstroem, it said.

That progress stands in contrast with the bumpy negotiations between the United States, Mexico and Canada on updating the North American Free Trade Agreement (NAFTA).

Uncertainty over the future of that 1994 deal — which US President Donald Trump has made a ritual of attacking — is weighing on the Mexican economy, which depends heavily on trade with the United States.

Mexico, which sends some 80 percent of its exports to the US, is looking to diversify its trading partners.

“Modernizing the EU-Mexico Free Trade Agreement is a priority in Mexico’s trade agenda seeking to strengthen our integration with existing trade partners and diversify our economic relations around the world,” the economy ministry said.

EU-Mexico trade has nearly tripled to $61.7 billion under the deal.

But that is still dwarfed by US-Mexico trade, which totaled $523.8 billion last year.

Unions have consitantly warned that the trade deal will do nothing to help resolve the attack on trade unions in Mexico, the development of ‘yellow’ unions and the attack on employment rights.

Mexico continues to systematically violate international labour standards regarding freedom of association, the right to organise and collective bargaining, corruption and conflict of interest in the Conciliation and Arbitration Boards, the pervasive use of employer-dominated “protection contracts,” (which allow for non independent company or yellow unions) and delays in union representation elections.

Unions such as Unite has also said that there was continuing gender discrimination, child labour, and violations of workplace health and safety among also serious ongoing problems. Unite said these violations have been extensively documented in the reports of ILO supervisory bodies and independent experts.

Read the back story to this item by clicking here.

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ITUC Suspends Right Wing Yellow Unions

The General Council of the International Trade Union Confederation (ITUC) has voted to suspend the membership of the Mexican ‘yellow’ union Confederation of Mexican Workers (CTM) – who were recently implicated in the murder of two activists of the Los Mineros union in Mexico- and the Revolutionary Confederation of Workers and Campesinos (CROC). 

Both of these organisations have a record of collaborating with employers to maintain low wages by promoting yellow unions and opposing independent unions.

They were suspended along with eight other right wing unions in Latin America that formed the “Democratic Union Alternative” (ADS) group (which has recently been in Washington meeting with Republican members of Congress and seeking U.S. government funding.

Their suspension signifies immediate loss of voting rights, and will lead to a vote on full expulsion at the next ITUC Congress in December 2018.

The TUC in the UK, the US AFL-CIO and the Canadian CLC strongly supported the decision.

In the context of the NAFTA and EU-Mexico FTA negotiations, suspension of the CTM and CROC should be seen as a victory for trade union democracy and a step towards justice for Mexican workers.

Thanks to Ben Davis of the United Steelworkers

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Unpaid Holiday Pay Judgement – The Sash Window Workshop & Another v King

Ground breaking ECJ Judgement rules ‘self employed’ worker should have been paid holiday pay.

Taken from Personel Today

In the case of The Sash Window Workshop and another v King, the ECJ has agreed with the Advocate General’s opinion earlier this year that Mr King, who was on a self-employed, commission-only contract as a sales person, should have been paid annual leave.

The decision on November 29th is significant for employers who engage people on a self-employed or contractor basis, who may now be liable for thousands in backdated holiday pay claims.

Conley King joined The Sash Window Workshop in 1999, working on a commission-only basis, receiving no pay when he was on holiday or ill. In 2008, the company offered him an employment contract, but he elected to remain self-employed.

When he left in 2012, he brought various claims in the employment tribunal, including a claim that he had been subjected to a series of unlawful deductions from wages over 13 years.

His initial tribunal found that he was a “worker” for the purposes of UK working time legislation, and therefore entitled to annual leave with pay, or payment in lieu of leave.

When the case went to the Employment Appeal Tribunal, it found there was no evidence that King gave any notice of his intention to take holiday that was then refused. King however then took the case to the Court of Appeal, at which point it was referred to the ECJ.

In the judgment, the ECJ noted that “the assessment of the right of a worker, such as Mr King, to paid annual leave is not connected to a situation in which his employer was faced with periods of his absence which, as with long-term sickness absence, would have led to difficulties in the organisation of work.”

“On the contrary, the employer was able to benefit, until Mr King retired, from the fact that he did not interrupt his professional activity in its service in order to take paid annual leave.”

The ECJ added: “EU law therefore precludes a situation in which the worker has to take his leave before establishing whether he has the right to be paid in respect of that leave.”

“Unlike in a situation of accumulation of entitlement to paid annual leave by a worker who was unfit for work due to sickness, an employer that does not allow a worker to exercise his right to paid annual leave must bear the consequences.”

The judgment also made it clear that Sash Window Workshop’s ignorance on King’s employment status was no defence for not paying his holiday or sick pay: “The fact that Sash Window Workshop considered, wrongly, that Mr King was not entitled to paid annual leave is irrelevant. Indeed, it is for the employer to seek all information regarding his obligations in that regard,” it said.

Nicola Ihnatowicz, employment partner at law firm Trowers & Hamlins said: “Employers who find that those they have always regarded as self-employed contractors actually have worker status will now potentially be faced with a significant financial liability for unpaid holiday pay.”

This liability could stretch back years, she added: “Under the Deduction from Wages (Limitation) Regulations 2014 there is a two-year backstop on claims for holiday pay.

“However, following the decision in Sash Window Workshop the entitlement to pay in lieu arises all at once on termination so the two-year back pay limit will have no relevance.

“As a result employers who have failed to provide their workers with adequate facility to take paid leave may be looking at a liability for many years of untaken holiday.”

Clare Gilroy-Scott, partner at Goodman Derrick, which represented King, said: “This case is of importance in clarifying that workers who are denied their entitlement under the Working Time Regulations to paid annual leave do not have to take a period of unpaid leave first before taking legal action to receive pay for that leave.

“This would otherwise have left a worker (who was without protection from unfair dismissal and reliant upon continued work) with the unattractive prospect of having to suffer a detrimental impact on his remuneration by taking unpaid leave. The court has confirmed that a worker may carry over and make a claim for untaken leave entitlement on the termination of the engagement in these circumstances.”

Because the decision refers to the UK’s obligations under the EU-derived Working Time Directive, this is an example of a decision that UK courts will still have to observe prior to Brexit and during any transition period.

Connie Cliff, principal associate at Gowling WLG, said there will be more clarity on the extent of employers’ holiday pay obligations when the case returns to the Court of Appeal.

She said: “But what precisely will be the loss of individuals such as Mr King? Where the individual took holiday which was unpaid, assessing the financial loss is easy. But where the individual continued to work (and get paid for that work) instead of taking holiday, what is the financial loss?

“Is it, as the EAT held, limited to the lost health and welfare benefits of taking annual leave and so unliquidated damages that will need to be assessed rather than lost wages? For the answer we will need to await the return of the case to the Court of Appeal.”

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Two Strikers Assassinated In Mexico

Press release from the National Union of Mine, Metal, Steel & Related Workers of the Mexican Republic (aka Los Mineros)

Armed group from CTM (Confederation of Mexican Workersattacks striking mineworkers at the Media Luna mine in Azcala, Guerrero; two workers assassinated

Sunday 19 November 2017

On the night of Saturday, November 18th, armed death squads from the CTM attacked the striking workers of the Media Luna mine at a roadblock that the workers had set up in the town of Azcala in the municipality of Cocula, Guerrero near the mine, resulting in the death of two of the workers.

The workers went on strike 17 days ago because they refused to belong to the CTM, which does not defend their rights and constantly betrays, offends, harasses and attacks them; and is completely subordinated to the interests of the company, which is why they decided to affiliate to the National Mineworkers’ Union.

The National Union of Mineworkers holds the company responsible for this perverse and cowardly aggression along with the CTM and the Secretariat of Labor and Social Welfare.

The repression occurred while negotiations were going on between the National Union of Mineworkers and the Canadaian company Torex Gold Resources, the owner of Media Luna in Guerrero.

The National Union of Mineworkers demands that the mining concession under which this company operates in Mexico be withdrawn, as it has violated the law and social order and no longer deserves to have the right to operate in Mexico, a country whose laws it has violated without respect.

The actions of the CTM death squads are among the worst acts of repression directed at the mineworkers and local residents, for which reason the Union demands that the entities responsible (Torex Gold, CTM and STPS) be investigated and subjected to criminal penalties, so that this vile and cowardly aggression does not go unpunished.

Likewise, we hold responsible President Enrique Peña Nieto, Interior Secretary Miguel Ángel Osorio Chong, and the Army and Navy units that presumably protected the aggressors – according to the workers so that the full force of the law is directed against the intellectual and material authors of this aggression.

The repression occurred in the town of Azcala in the municipality of Cocula, Guerrero, near the Media Luna mine, where the workers had set up a roadblock, and brought on a  reaction that the repressors did not expect.  The workers of Media Luna, as well as the and the local residents, are outraged by these acts, and they demand that instead of the union election which was planned, the control of the collective bargaining agreement now be awarded immediately to the National Union of Mineworkers which they had sought to join from the beginning of this conflict.

The workers who died in this aggression are two brothers, Víctor and Marcelino Sahuanitla Peña. An army squadron detained the aggressors, but immediately released them due to an order from an unknown authority.

The striking workers at Media Luna identified the following persons as responsible for the attack by the CTM: local leaders Oscar Sotelo Gaspar, Marcelo Ríos Zúñiga, Marcial Barrios, Rodolfo Aldave Villalobos and the brothers Luis and Miguel Gómez Montiel; the last two – known as “the goats” – were the ones who directed the repressive operation.

The military patrol that intervened in the attack was Number 0827327, from the Military Zone of Iguala, Guerrero, whose members presumably participated in and are responsible for the disappearance of the 43 higher education students from Ayotzinapa, and was under the command of Lieutenant Erik Mondragón Serrano. At the moment of the attack members of the Gendarmerie (of the Federal Police) were present; these guarded the attackers and took them away, then released them in the area known as El Arenal.

The National Union of Mineworkers demands justice and a complete halt to the repression and attacks against the mineworkers in the State of Guerrero and throughout the country.

Note: The CTM is a supporter of ‘yellow’ unionism. It negotiates ‘sweetheart’ agreements with employers many of whom have granted CTM recognition rights without the agreement of the workforce.

Evidence shows that Mexican workers have usually received little benefit from these agreements. The CTM is seen as increasingly corrupt and right wing, and works to impede workers’ efforts to organize independent unions such as Los Mineros.

Los Mineros is a sister union of Unite The Union in the UK and Ireland and the United Steelworkers in the USA and Canada in Workers Uniting.

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