There have been many
attempts to reform the Labor Law and bring it up to
date. This is a highly charged political issue in
Mexico, which leads one to ask.
How has this reform
been made possible after so many attempts?
Helping to make
possible this reform was another reform on August 9,
2012 to Article 71, section I of the Political
Constitution of the United Mexican States.
All new laws in Mexico
go through a creation process before becoming law
which is established in the Constitution. This
process is detailed in the aforementioned Article 71
and consists of 5 stages.
|
a)
INITIATIVE: An initiative can be
presented by the President, the Senate,
Congress (Diputados), the legislators of
the States, as well as by Citizens, and
can be presented to either of the
Chambers (Senate or Diputados) and that
Chamber will be referred to as the "Camara
de Origen" or the Chamber of Origin.
|
|
b)
DISCUSSION: The Chamber of Origin
passes the Project to the "Camara
Revisora" or the Reviewing Chamber (the
other Chamber of Congress) for its
discussion. |
|
c) APPROVAL
AND SANCTION: Once the Initiative is
approved by both Chambers it is sent to
the President who can reject and send it
back or approve it and send it to be
published in the DOF - Diario de la
Federación (Daily Periodical of the
Federation). The President has 10
days to respond. If he does not respond,
the initiative is considered as approved
and the President of the Chamber of
Origin will order the publication within
the following 10 calendar days of the
Initiative in the DOF. |
| d)
PUBLICATION AND EFFECTIVE PERIOD:
The Initiative is published in the DOF
and the transitional articles set the
date it will take effect. (This reform
takes effect the following day, December
1, 2012) |
The reform to Article
71 incorporated a new fast track for Presidential
Initiatives. This "Iniciativa de Trámite Preferente"
(Process of Initiative with preference) gives the
President the authority to introduce to the
first session of Congress up to two initiatives of
Preference. These must be discussed and voted on in
a maximum period of 30 calendar days.
President Calderón
presented an Initiative of Preference for a reform
of the Federal Labor Law to the Chamber of Diputados
which approved it in part and sent it to the Senate
which also approved it on November 13, 2012 and sent
it to the President for publication. The publication
of the reforms in the DOF is the last official act
as outgoing President. The new President took the
oath of office on December 1, 2012.
This reform is a
major overhaul or updating of the Federal Labor Law,
some of the reforms merely update the Labor Law with
the actual practice.
SUMMARY OF THE REFORMS TO THE FEDERAL LABOR LAW
BY
Lic. Glenn Louis McBride -
1. The incorporation
of the idea of "decent work" promoted by the
International Labor Organization (The
UN specialized agency which seeks the promotion of
social justice and internationally
recognized human and labor rights.)
which among others are the respect for the human
dignity of the worker, the no discrimination for
reasons of gender, sexual preference, disability,
race or religion, access to Social Security, an
appropriate salary, continuous training and
qualification for increasing productivity,
occupational health and safety, freedom of
association, union autonomy, the right to strike,
collective bargaining.
2.
New types and ideas for the contracting of workers,
test periods, initial qualification contracts,
seasonal work for the purpose of attending to the
circumstances that prevail in the modern global
market. These ideas are formalized in the Labor law
with the idea of bringing, principally women and
young people, into the formal work market. These new
types of contracting establish the rules and time
non-renewable time periods for the test periods and
initial qualification contracts so that they cannot
be applied on more than one occasion to a worker.
3.
The regulation of Sub-contracting and Outsourcing,
for the purpose of avoiding compliance to the
obligations of an employer. This firmly establishes
the legal responsibility for all parties involved in
this type of employment.
4.
The defining the employment of minors under 14 years
old as a crime outside of the family circle.
5.
The granting of greater protection and legal
security to Mexicans that are going to work outs of
Mexico. This sets the stage for
intergovernmental cooperation and regulation of
Guest worker programs that involve Mexican workers.
6.
The establishment of a mechanism for communication a
notice of the rescission of a labor contract by the
Employer to the Worker, for the purpose of
avoiding the necessity of proving in court that the
worker refused to receive a notice of rescission.
7.
The inclusion of a new cause for rescission of a
labor contract without responsibility for the
worker, when the employer requires the employee
to execute acts, conduct or behavior that infringes
on his rights or dignity.
8. The
reform reinforces the rights of Women workers,
through specific measures:
-
Expressly prohibits
discrimination for gender.
-
Prohibits sexual
harassment and punishes those involved in such
conduct and defines greater responsibility for
the employer.
-
Prohibits the practice
of requiring a medical certificate (to verify
the worker is not pregnant)
-
Permits women greater
leeway to distribute the 12 weeks maternity
leave.
-
Mandates 10 days paid
paternity leave for fathers
-
Mandates 6 weeks paid
maternity leave for adoptive mothers
9. The reform permits payment by bank cards,
debit card, transfers or any other electronic
method. This updates the law to conform with
the actual practice. The labor law formerly
required payment in cash.
10. The reform establishes a limit on the
back pay period, the period between the
dismissal of the worker and the conclusion of
the judicial process, in order to combat
the practice of prolonging labor disputes.
It now will be limited to one year.
11. The reform promotes the multi or cross
training of workers. This permits more
leeway to train a worker for many different
tasks and removes the barriers for moving labor
to where it is needed in a company.
12. The reform establishes the obligation of
the employer to affiliate with FONACOT. The
reform requires employers to affiliate workers
with FONACOT - Fondo Nacional para el Consumo
de los Trabajadores (National Fund for the
Workers as Consumers)
13. The reform
requires employers to coordinate with labor
authorities for contingencies and emergencies.
14. The reform brings the law in line with
Supreme Court jurisprudence on the subject of
Profit sharing, for the exemption of
employers that have been granted a suspension
from the Junta de Conciliación (Board
of Concliation and Arbitration) for economic
reasons.
15. The reform requires adapting workplaces
with more than 50 employees for handicapped
access.
16. The reform reinforces the provisions that
regulate training of workers, with new
requirements for evaluating workers and linking
training to salary.
17. The reform allows
employers to give preference to worker
productivity and ability as the primary criteria
for advancement and promotion instead of
seniority.
18. The reform requires better labor
conditions for field workers, with a
registration of temporary or seasonal workers,
better documentation from the employer to the
worker, better benefits, conditions during
working hours, and interpreters for workers who
do not speak Spanish.
19. The reform
improves the conditions of domestic employees.
20. The reform
includes in Title Six of the Law a new Chapter
for regulating MINE WORKERS.
21. The reform
recognizes Telecommuting or telework, using
technology for workers working from home.
22. The reform details
the free, direct and secret voting on union
elections.
23. The reform
reinforces the workers' rights to the review the
rendering of accounts of the Unions.
24. The reform permits
Unions to comply with their obligations
electronically.
25. The reform
includes express provisions to consider the
Union records as Public Information.
26. The reform gives
the labor authorities to require the unions to
provide all the documents requested in the
application process or the application will be
voided.
27. The reform eliminates the "cláusula de
exclusión por separación" in many of the
Union contracts that requires the dismissal of
employees that are not Union members. This
brings the law in line with Supreme court
rulings on the subject.
28. The reform denies
a Union to place a company on strike when a
strike is already in place.
29. The reform increases the amount of
indemnification for the death of a worker from a
work accident. The law currently requires a
payment of 650 days wages to up to 5,000 days
salary depending on the accident and the
responsibility of the employer.
30. The reform reinforces health and safety
measures in the workplace. It gives greater
authority for the Health and Safety inspectors
to order the immediate closure of a workplace in
case of imminent danger to health, life or the
integrity of persons.
31. The reform
facilitates the updating of the Table of
Occupational Illnesses and and the Valuation of
permanent disabilities.
32. The reform extends the jurisdiction of
Federal authorities through a new interpretation
of "Federal Concession" to include
activities of a company under Federal
authorization or permit.
33. The reform reinforces the powers and
objectives of the National Employment Service
for the purpose of proposing and
implementing mechanisms to link professional
formation with regional priorities.
34. The reform eliminates the Federal Juntas
de Conciliación y Arbitraje at the State level.
This has the effect of updating the Law with
the actual situation in Mexico and eliminates
the duplication on the part of the State STPS
and Federal STPS.
35. The reform requires a greater
incorporation of the concept "conciliation" into
the process. During the entire procedure,
from beginning to end, the Juntas will attempt
to lead the parties to conciliation of
conflicts.
36. The reform requires greater educational
preparation for public servants involved in the
system. It requires a greater educational
level for functionaries and parties involved in
defense and prosecution.
37. The reform will require a greater degree
of professionalism in the labor authorities as
well the parties involved. This will require
that all the parties involved in the defense of
the worker and the employer be licensed
Attorneys.
38. The reform will
permit the greater use of technology in the
process in order to improve the system.
39. This reform
modifies the structure of the first hearing in
the ordinary procedure to: conciliation,
lawsuit, and exceptions and a second hearing for
the presentation and admission of evidence.
40. The reform
establishes a summary procedure in order to
grant social security benefits, Infonavit, and
the retirement benefits (AFORE).
41. The reform provides increases in the
amounts of fines for notorious delaying tactics
such as the "Recurso de Revision" (Review
Recourse) or the Complaints dealing with acts of
execution (or absence of them).
42. The reform
addresses the situation when a strike lasts
longer than 60 days with respect to employers
that render public services.
43. The reform
establishes a relief for third parties to
recover possession of their property in the case
of a prolonged strike.
44. The reform establishes an additional
cause for declaring a strike non existing
when the Union does not comply with their own
statutes for declaring a strike.
45. The reform
establishes a cause for denying the placement on
strike when the violations of said contract are
not clearly or fully detailed and the form of
repairing the violations is not detailed.
46. The reform combats the so called "Contratos
de Protección" (protective contracts). more
on this to come.
47. The reform establishes new rules for the
processing of lawsuits (demandas) for Collective
labor contracts. The object being to
assure the legitimate representation of the
workers.
48. The reform provides that in the
collective conflicts of an economic nature,
that only a strike suspends the process.
49. The reform details
the free, direct and secret vote and recount of
votes in strikes.
50. The reform
increases the amounts of fines for those that
infringe the Federal Labor law that can reach
5,000 times the current general minimum wage in
the Federal District.
I
am working on a complete translation of this
reform to over 400 articles of the Federal Labor
law and it will be available soon. If you wish
to be notified, email me.
Lic. Glenn Louis McBride
glenn@mexicanlaws.com
Mexican Attorney
MEXICANLAWS S.A. DE C.V
Derechos
Reservados © 2012 Lic Glenn Louis McBride Withenshaw
