The legislative transformation resulting from the TMEC negotiations, the impact of the minimum wage increase, collective bargaining, and the labor legislative agenda for 2024.
Continue readingMEXICO'S LABOR OUTLOOK FOR 2024
ESTABILIDAD EN EL EMPLEO
Nos complace compartir el artículo, escrito por nuestro socio J. Genaro Pérez Velázquez, recientemente publicado en la 12ª Edición de The Legal Industry Reviews (Julio 2023).
El derecho laboral en México siempre ha defendido el principio de la estabilidad en el empleo. Pero, con las recientes reformas, estamos presenciando cambios considerables en este principio:
- Antes, la Ley Federal del Trabajo (LFT) consideraba la estabilidad en el empleo como un derecho fundamental. Sin embargo, con las reformas, ha habido un cambio en su percepción.
- Si un trabajador es despedido injustamente, puede solicitar la reinstalación. Pero hay excepciones según el artículo 49 de la LFT.
- En caso de eximición, el patrón debe pagar indemnizaciones detalladas en el artículo 50 de la LFT.
- Con la reforma de 2019, ahora los patrones pueden depositar las indemnizaciones en el Tribunal paraprocesalmente, aportando información esencial del trabajador.
- Si hay desacuerdo sobre la indemnización, el trabajador puede tomar medidas legales. Si el Tribunal decide que no se cumplen los criterios para la eximición, el depósito de la indemnización queda sin efecto.
- Si el monto depositado es insuficiente, el Tribunal obligará al patrón a pagar el saldo restante e intereses.
Las reformas buscan agilizar los procesos y reducir tiempos y costos, pero es esencial estar bien informado. Conozca más detalles en nuestro artículo completo y manténgase actualizado en este ámbito tan crucial.
OFFICIAL MEXICAN STANDARD NOM-037-STPS-2023 REGULATING TELEWORKING ISSUED
On June 8, the Official Mexican Standard NOM- 037-STPS-2023, Teleworking-Conditions for Safety and Health at Work ("NOM-037"), issued by the Mexican Ministry of Labor and Social Welfare, was published in the Official Gazette. This official standard will become effective 180 calendar days after its publication, that is, as of December 5, 2023.
NOM-037 will be mandatory for those who hire people under the Telework modality. The definition of Telework is in line with the Federal Labor Law, being understood as a form of labor organization consisting in the performance of activities in places other than the work center –so that the physical presence of the employee is not required– using information and communication technologies for supervision and contact with the employer. It should be noted that NOM-037 provides that a specific address must be established for this modality to be effective. This implies that people will not be able to render services from places such as cafeterias or restaurants and, in case they decide to relocate, the company must validate the conditions of each new address.
Another relevant point is that it defines the right to disconnection. In this regard, NOM-037 establishes that it refers to the right of employees to disconnect from work (including disconnection from any technology) and refrain from participating in any type of communication with the workplace at the end of the workday, as well as during non-working hours, vacations, holidays, leaves of absence and during breaks agreed between the parties.
NOM-037 addresses the safety and health conditions in the places where teleworkers perform their activities, to prevent accidents and diseases, as well as to promote a safe and healthy work environment. In this regard, companies that decide to implement the Telework modality should assume the following obligations:
- Implement, publish, and maintain a Telework Policy. This policy should contain, among others, the terms to perform Telework in a safe and healthy way, in addition to indicating the mechanisms and rules of contact between the company and the employees. It should also define the mechanisms in case it is necessary to return to a commuting modality, even if it will be temporary.
- Have a checklist of safety and health conditions in Telework. This is a tool to assess whether the place for Teleworking has safe and healthy conditions. This checklist seeks to evaluate the suitability of candidates to perform under this modality, as well as the physical space proposed to perform the work, considering ergonomic risk factors, lighting, ventilation, and noise, among others. Companies must have evidence that they validated the conditions indicated in the list, either through a visit to the proposed site, or by allowing the candidate to fill out the list to be subsequently reviewed by the Company. In both cases, photographic or video evidence should be generated. Companies should also implement periodic checks and document them in new follow-up lists.
- Have an updated list of people who perform Telework. This list must contain, among other elements, the activities to be performed, their job profile, the percentage of time they will be teleworking, as well as the computer equipment and furniture that is granted by the company, if applicable. Regarding the last point, NOM-037 endorses the obligations of the Federal Labor Law in connection with the provision of a computer, printer, toner, chair, as well as any other tool that guarantees good posture and ergonomics to the teleworker.
- Provide training for teleworkers. Employers should provide at least one training per year focusing, among others, on the recognition of the different types of risks due to hazardous and unsafe conditions, ergonomic risk factors, psychosocial risk factors, understanding and implementation of the Telework Policy and the management of information technology.
People working under this modality will also have to comply with certain special obligations, as follows:
- Facilitate a physical verification of the safety and health conditions of the proposed place of work before performing under the modality of Telework and, once in it, to facilitate periodic verifications.
- Inform of any alteration of the conditions of safety and health at work, or case of force majeure, that prevent the performance of Telework.
- Informar de cualquier alteración de las condiciones de seguridad y salud en el trabajo, o caso de fuerza mayor, que impidan el desarrollo del Teletrabajo.
- Safeguard and keep in good condition the equipment (including computers), materials, tools and furniture provided by the employer to perform Telework.
- Comply with the provisions on occupational health and safety, and to undergo the medical examinations required by the applicable standards.
- Comply with the data and information protection policies and mechanisms established by the employer in the performance of its activities, as well as the restrictions on their use and storage.
- Inform the employer in writing and in advance of any permanent or temporary change of address.
- Participate in the processes of risk information and training related to their Telework activities provided by the employer, as well as in face-to-face or virtual meetings organized to avoid social isolation.
- Report any work-related accidents they may suffer.
The Health and Safety Commission of each company will have an important role in the implementation of the NOM-037, since it will be in charge of defining, drafting, evaluating, and authorizing the "Checklists of safety and health conditions in Telework " applicable to each address where teleworkers perform their activities. It will also supervise the collection of the records of the tools and computer equipment provided to teleworkers.
Employees may only perform under a Teleworking modality after a verification of the health and safety conditions applicable to the place where they intend to perform their activities. If the proposed place does not comply with the safety and health conditions, Teleworking should not be authorized.
NOM-037 includes examples and guides to facilitate its application. However, companies must have all the documents required at each point of compliance, which cannot be prepared entirely from these annexes, as they are linked to obligations derived from other legal regulations.
APROBACIÓN DEL PROYECTO DE LA NOM 037 EN MATERIA DE TELETRABAJO
Nos complace compartir un articulo publica en la revista “Legal Industry Reviews” sobre la aprobación del proyecto de la NOM 037 en Materia de Teletrabajo, con autoría de Beatriz Higareda.
El Comité Consultivo Nacional de Normalización de Seguridad y Salud en el Trabajo ha aprobado el proyecto final de la NOM 037-STPS-2022 en Materia de Teletrabajo, Condiciones de Seguridad y Salud en el Trabajo. El objetivo principal de esta Norma es establecer las condiciones de seguridad y salud para prevenir accidentes y enfermedades para los trabajadores que prestan servicios en la modalidad de Teletrabajo. +
Entre las obligaciones establecidas se encuentran contar con un listado de teletrabajadores, asegurarse de que el lugar de trabajo cuente con condiciones óptimas de conectividad, comunicación y seguridad, establecer una política de Teletrabajo, informar a las personas en Teletrabajo sobre exposición a agentes y factores de riesgo, documentar el proceso de implementación de Teletrabajo, proporcionar herramientas necesarias, entre otros. La Norma Oficial entrará en vigor a los 180 naturales posteriores a su publicación en el Diario Oficial de la Federación.
DRAFT DECREE TO AMEND ARTICLE 123 REGARDING DAYS OF REST
On April 25, 2023, the Commission of Constitutional Matters of the Chamber of Representatives approved and sent to the Plenary Session of said Chamber, for discussion and approval, if applicable, the "Ruling on the initiatives with draft decree proposing the amendment of Article 123 of the Political Constitution of the United Mexican States, regarding rest days".
The draft decree is justified on the impact that workers have on their health, family cohesion and social relations, as a result of working hours and the lack of rest days, as well as the recommendations issued by the International Labor Organization (ILO).
The initiatives analyzed by the Commission included the proposal to reduce the daily workday from 8 to 7 hours, as well as amendments to Section B of Article 123 of the Constitution (which applies to workers at the service of the State); however, in the opinion approved by the Commission it was proposed to amend only the text of Article 123 Section A of the Political Constitution of the United Mexican States, in order to reduce the working days to five, increase the rest days to two, in other words, for five days of work there would be two days of rest, which implies that the weekly workday would be of 40 hours.
The legislative process will have a recess, since the first ordinary period of sessions has concluded and will continue in the second ordinary period of sessions that will begin in September 2023, at which time the draft Decree may be considered for voting.
It is unlikely that the draft decree will be considered for a special session, since in order to summon a special session, it must be done by two-thirds of the Permanent Commission of the Congress or by the President of the Republic.
This is a Constitutional reform, so its approval requires the vote of two thirds of the legislators, both in the Chamber of Deputies and subsequently in the Senate, and the reform must be approved by the majority of the Local Congresses.
The reform would not only impact work centers that work six days and one rest day, since according to the Federal Labor Law there are workplaces that work 5 days with 2 rest days, but the sixth day is divided into 5 days to work 9.5 hours a day from Monday to Friday and, with the proposed reform, those work centers would have to reduce the workday to 8 hours a day.
However, it is worth reviewing how the working week is regulated in Latin American countries:
| Countries | Maximum weekly working hours |
|---|---|
| Argentina, Bolivia, Costa Rica, Nicaragua, Panamá, Perú y Uruguay | 48 |
| Guatemala, Honduras, Cuba, República Dominicana, Brasil y Venezuela | 44 |
| Ecuador | 40 |
En Europa:
| Countries | Maximum weekly working hours |
|---|---|
| Holanda | 48 |
| España, Bélgica, Italia, Polonia y Suecia | 40 |
| Dinamarca | 37 |
| Francia, Suiza y Alemania | 35 |
There is a legislative tendency to reduce the working week, as in the case of Chile, where in March this year they reduced the working week from 45 to 44 hours and will reduce it to 40 hours in 2028. There are even more aggressive plans, such as in England, where in June 2022, 71 companies changed to a four-day workday as part of a pilot program. Colombia will gradually reduce the number of working hours per week, starting at 47 in 2023 and ending at 42 in 2026.
During this waiting period it is possible that, in view of the stances of the sectors involved, the draft decree will have a new analysis, since it implies a high impact on the life of the Companies, both economic and operational, generating the challenge of modifying the ways of working to comply with the reform, and in turn, guarantee the efficiency of their operation.
Thus, Mexico will experience a debate in which political interests in the run-up to the presidential elections will put pressure on Congress and the State legislatures to approve the reform, disregarding the fact that it entails a high cost and loss of competitiveness in the face of possible investments. Although it is difficult to anticipate a scenario, it is possible that the party in power will be satisfied with the proposed initiative and the electoral and media projection it gives it, without the detriment to labor competitiveness that approving the reduction of the workweek would represent.
¿EXISTE PRÓRROGA PARA EL PROCESO DE LEGITIMACIÓN?
Como hemos informado anteriormente, está por concluir el plazo para la legitimación de Contratos Colectivos de Trabajo (CCT), a la fecha han sido legitimados únicamente 12,641 CCT. En torno al plazo otorgado para la legitimación, han circulado noticias que aseguran la extensión de este periodo.
Sin embargo, con fecha 6 de marzo de 2023, se publicó el acuerdo que aclara las condiciones en que operará el plazo para el registro y desahogo de los procedimientos de legitimación de CCT existentes. En dicho acuerdo, la Junta de Gobierno del Centro Federal de Conciliación y Registro Laboral aclaró que no existirá prórroga para la solicitud de legitimaciones de CCT, lo cual confirma que la fecha de vencimiento será el próximo 30 de abril de 2023. En consecuencia, todos los CCT que no hayan sido registrados para su legitimación en la plataforma del Centro de Conciliación y Registro Laboral se darán por terminados en la fecha mencionada.
Considerando lo anterior, la extensión señalada al 31 de julio de 2023 aplica al plazo para el desahogo de las consultas (votaciones) que se hubieran registrado antes del 1 de mayo de este año para efectos de legitimación de CCT, atendiendo a que durante la pandemia por covid-19 fueron suspendidas las mismas.
SENATE APPROVES INCREASED VACATION TIME FOR WORKERS IN MEXICO: SOME CONSIDERATIONS
On December 14, 2022, the Plenary Session of the Senate unanimously approved the draft bill to amend Articles 76 and 78 of the Federal Labor Law, presented by the Chamber of Deputies, regarding vacation time. The ruling is now passed to the Executive for its publication in the Official Gazette of the Federation. It will become effective on January 1st, 2023.
As mentioned in our previous newsletter, this reform is justified as our country was falling behind in terms of paid time off, and official vacation periods had not been revised since the enactment of the Federal Labor Law in 1970.
Aunque algunas iniciativas propuestas por senadores de diferentes grupos parlamentarios contemplaron esquemas de vacaciones con un mayor número de días, el dictamen aprobado se centró en el derecho a vacaciones pagadas. El texto reformado es el siguiente:
“…
Article 76. - Workers with more than one year of service shall enjoy an annual period of paid vacation, which in no case may be less than twelve working days, and which shall increase by two working days, until reaching twenty, for each subsequent year of service.
As from the sixth year, the vacation period shall increase by two days for every five years of service.
Article 78. -Of the total period corresponding in accordance with the provisions of Article 76 of this Law, the employee shall enjoy at least twelve days of continuous vacation. Said period, at the discretion of the worker, may be distributed in the manner and time so required.
…”
For clarity, the new vacation scheme would look as follows:
| Years worked | Vacation days |
|---|---|
| 1 | 12 |
| 2 | 14 |
| 3 | 16 |
| 4 | 18 |
| 5 | 20 |
| 6 a 10 | 22 |
| 11 a 15 | 24 |
| 16 a 20 | 26 |
In regard to the table above, although it is in the same terms as it was included in the various draft bills, from some points of view there could be a contradiction between the approved legal text and the way in which the new scheme was established. Considering that the reform states that the starting point is twelve days, increasing by two until reaching twenty and that from the sixth year onwards, two days will be increased every five years, this could lead to the interpretation that the period from the sixth to the ninth year is twenty days and that, until the tenth year, after the five-year period has elapsed, there would be a right to twenty-two days.
Another issue that generated controversy was whether the vacation period should be enjoyed continuously. The considerations of the approved bill point out that the reform seeks to guarantee and grant certainty to the employees, as well as paid time off according to their needs, but also recognizing that there are activities that cannot be substituted due to the degree of specialization of the work required. Therefore, although continuous vacation periods should be granted in general terms, the legal text allows the parties to agree on the time and form of distribution of vacation days, either continuously or partially.
Regarding the entry in force of the new provisions, vacation days already accrued and still pending to be taken will not be affected by this change. However, as of January 1st, 2023, when employees reach their anniversary, they will be entitled to a vacation period under the new scheme.
—
LEGISLATIVE PROPOSAL FOR LONGER VACATION PERIODS FOR MEXICAN WORKERS
On September 27, 2022, the senators that make up the Labor and Social Welfare Commission unanimously approved the Opinion to amend Articles 76 and 78 of the Federal Labor Law, presented by the United Commissions of Labor and Social Welfare and Legislative Studies, regarding vacations. Before its official approval, this opinion must be subject to review by the Chamber of Deputies.
The Opinion takes up the initiatives proposed by senators of different parliamentary groups. Although some initiatives contemplated vacation schemes with a greater number of days, and some even proposed a reduction of the working day, the approved Opinion only extends the right to paid vacations, to be as follows:
| YEARS WORKED | NUMBER OF DAYS OFF (PTO) |
| 1 | 12 |
| 2 | 14 |
| 3 | 16 |
| 4 | 18 |
| 5 | 20 |
| 6 a 10 | 22 |
| 11 a 15 | 24 |
| 16 a 20 | 26 |
The reform establishes that workers must continuously enjoy at least 12 days of vacation. This reform is justified on the basis of our country's lag in terms of holidays, since, when compared to other countries with a similar level of development to ours, Mexico is one of the countries with the lowest level of vacation periods around the world. For example, in Brazil and Panama, the legal standard is 30 days of vacation as of the first year, while the average in the region is almost 15 days.
The proposed Opinion points out that the World Health Organisation (WHO) estimates that in Mexico 75% of the workforce suffers from work-related stress, which puts us in a global first place, above the world's leading economies, such as China (73%) or the United States (59%). In this regard, it should be noted that specialists in the field have pointed out that short holiday periods have an impact on workers' stress levels, as well as being related to other ailments, such as chronic exhaustion (burnout).
Although everything seems to indicate that this reform will be approved in the short term, there is no certain date for it to be published in the Official Gazette, given the current legislative process. Employers' chambers have requested that the implementation of the reform be gradual so as not to harm small and medium-sized enterprises and to allow them to make the necessary projections and adjustments to comply with the new standard.
This change will have an operational and economic impact in companies, and will ultimately benefit them by increased employee satisfaction.
To read the full article, download the PDF here .
COMPLETION OF THE FINAL STAGE OF MEXICO’S LABOUR LAW REFORM
As a result of the May 2019 Labour Law Reform, the new model was implemented in each of the country's states in stages, facing delays mainly due to budgetary problems and the challenges of coordination between the state and federal levels. On 3 October 2022, however, the third and final stage of its implementation was completed. As of that date, the authorities that will attend new labour disputes in all federal entities of the Republic will be the Conciliation and Registration Centres and the Labour Courts.
With this implementation, the Conciliation and Arbitration Boards have ceased to see claims and any other requests related to new procedures, including out-of-court settlements, being in charge only of the processing and resolution of lawsuits that were previously filed before this authority.
As we have previously reported, the new procedure implies a mandatory pre-judicial conciliation before the Conciliation Centres as a condition for filing a lawsuit before the Labour Courts, except for those alleging discrimination or pregnancy, among others exceptions provided in the Law. The appearance of the employer is also compulsory, and the authority can impose fines in case of failure to appear, so we envisage that conciliation will play an important role in dispute resolution.
Contrary to the procedure followed before the Conciliation and Arbitration Boards, the stages of the new procedure are in writing, with the exception of the preliminary and trial hearings.
The procedure before the Labour Courts implies new challenges for the defence of the cases, as the new regulations impact procedural terms and the burden of proof for the parties. This will also be reflected in new forms of administration of the employment relationship, from its inception to its termination.
Notwithstanding the challenges that a transformation of this scale implies, this change has generated the expectation of having greater legal certainty and shorter times in the resolution of conflicts, which, in the experience of the first two stages, have been resolved within the procedural terms established by law. In the states where the new procedure was previously initiated, disputes have been resolved on average within a timespan of 6.1 months.
With this third stage, Mexico is closer to fulfilling its commitments under T-MEC, the free trade agreement between Canada, Mexico, and the United States. What remains pending in this regard is the deadline for the legitimisation of collective bargaining agreements, which, like the implementation of the new labour justice model, has faced operational challenges.
To read the full article, download the PDF here .
MEMORANDUM ON PRE-JUDICIAL CONCILIATION PROCEDURE FOLLOWING MEXICO’S LABOUR LAW REFORM
As you know, since the labor law reform of 2019, new instances and authorities have been created for the attention of labour and employment disputes, highlighting the mandatory pre-judicial conciliation at national level before the new Conciliation Centres. As of 3 October 2022, these Centres began to operate in all the federal entities of our country. It should be noted that the new legal framework exempts the obligation to go to conciliation in the following cases:
- Discrimination.
- Designation of beneficiaries due to death.
- Social security benefits.
- When safeguarding fundamental labour rights such as: a) Freedom of association, freedom of association and the effective recognition of collective bargaining; b) Labour trafficking, as well as forced and compulsory labour; and c) Child labour.
- Ownership of collective bargaining agreements or contracts law.
- Challenges to trade union statutes or their modification.
It is important to note that in order to attend these conciliation processes it is essential to have legal representation powers and that the company's non-attendance may result in the imposition of fines.
In order to best attend the conciliation appointments, we ask you to consider that, in the event that the labour dispute is not resolved through pre-judicial conciliation, the workers will have the right to sue for the actions and benefits they deem appropriate before the new Labour Courts.
The trials before these Courts present new challenges to the defendant, since it will no longer be possible to deny the dismissal and offer reinstatement in order to reverse the burden of proof to the worker regarding the existence of the dismissal. In terms of the new legal framework, it will be, in general terms, up to the employer to prove that the unjustified dismissal did not materialise, so that conciliation will gain relevance as a preventive dispute resolution mechanism and should be considered a priority.
Therefore, we request that when you share the pre-judicial conciliation summons with us, you confirm whether or not there was an employment relationship with the applicant. Incase there is, we request you to immediately provide us with the applicant's entire employment history, such as category, working day, salary and benefits, history of departure or dismissal, as well as the amounts that could be authorized for the conclusion of a possible agreement. In case there is none, please inform us of the other nature of the relationship with the applicant.
The above will allow us to attend to these proceedings in the best way possible and avoid greater contingencies in court and further growth of your litigation portfolio. If you have any doubts or comments, please do not hesitate to contact us.
To read the full article, download the PDF here .