There are doubts about expeditious labor conciliation

Note published in Reforma, Negocios [Business] Section by Verónica Gascón.
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Note published in El Norte, Negocios [Business] Section by Verónica Gascón.
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Note published in Mural, Negocios [Business] Section by Verónica Gascón.
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New model

Conciliation is the priority in the new labor justice system; however, exceptions apply in some cases, which must go directly to trial:

·    In the event of discrimination at work and job assignments because of pregnancy. As well as for reasons of gender, sexual orientation, race, religion or ethnic origin.

·    Due to sexual harassment by peers or supervisors

·    Social security benefits for occupational hazards, maternity, illness, disability and occupational accidents.

·    Labor trafficking

·    Child labor.

·    Forced and mandatory labor


Source: STPS [Department of Labor and Social Welfare].

With the inauguration of the new labor justice system, a way for resolving disputes between employers and employees through a conciliation process that should take a maximum of 45 days to be completed will be available.

This will mark a difference with the trials being conducted in the Conciliation and Arbitration Boards, in which the resolution of cases can take between 3 and 5 years in average.

The Department of Labor has acknowledged that, under the current system, there have been cases of never-ending trials lasting 20 years.

Labor lawyers litigating in the Conciliation Boards doubt that an expeditious conciliation will be achieved, which is the objective of the labor reform.

Diego García Saucedo, a member of the Mexican Academy of Labor Procedural Law believes that this conciliation phase will work only if the parties are willing to reach agreements, otherwise, the trials will end up in the courts.

“The conciliation should take 45 days, but it is not mandatory to conciliate, and this means that if it is only going to be an intermediate toll stop before going to court, this will go against its supposed objective which is to somewhat reduce the number of matters that come to be judicialized, they are going to fall into the same slowness that the boards are falling into”, stated García Saucedo.

He said that there is the possibility that one of the parties could refuse to conciliate and, as part of its strategy, wait to be able to produce evidence in its favor before the courts.

For his part, Héctor de la Cruz, a lawyer at the De la Vega & Martínez Rojas Firm, is of the opinion that it will be complicated for the new conciliation model to work in an optimal manner at the beginning, since it implies a change of mentality among the parties.

“The tools that the new conciliators are being provided with sound interesting, they will propose alternative solutions, but things will not depend only on the authorities, but on those of us who will be there, negotiating, that we have the good will to resolve the matters as quickly as possible”, he pointed out.

The Federal Conciliation Center, its local agencies and the labor courts will start operations on November 18 in 8 federal entities (Campeche, Chiapas, Durango, the State of Mexico, San Luis Potosí, Tabasco, Zacatecas and Hidalgo, but only in the federal sphere), in which this new conciliation model will be put in practice.

Unlike the proceedings in the Local Boards, in which lawyers take a leading role, in the conciliation centers, the worker filing a complaint can present his arguments directly, without the need for a litigant.

In fact, the head of the Federal Conciliation Center, Alfredo Domínguez Marrufo, believes that when this new system starts operating, it will be the end of the “Industry of litigation”.

The official said that there are employer’s lawyers that advise prolonging the case to tire the workers out and have them accept the “crumbs” offered to them. But there are also cases in which companies are the object of million-peso lawsuits in order to push employers to give in to pressure or the awards that could take their patrimony away from them.

It should be noted that employers will not be able to evade the complaint; in the event that they do not attend the conciliation hearing, they will be subject to a fine of between 50 and 100 UMAS [Units of Measure and Update].

If the employee does not attend the hearing, the case will be filed.

This procedure seeks to be a filter to prevent files from reaching the courts and preventing the saturation of these instances with cases. This is currently the case with Conciliation Boards, which have a lag of years in the resolution of disputes.

“Pre-judicial conciliation will allow access to labor justice to be more expeditious. (For example) the person who perhaps resigned and has not been paid his severance package; this will be an excellent filter that will help in having as few as possible litigations reach the labor courts and preventing many of the matters that can be resolved quickly from collapsing the courts, which will start out with zero files”, said lawyer Jorge Sales.

He explained that workers must attend the conciliatory instance in person and, therefore, they will no longer be dependent on a legal representative.

“Perhaps those lawyers known as coyotes, who create false expectations in the workers will lose part of this business, which was a high-volume recurring business because the worker can now attend by himself to request his conciliation”, said Sales.

If the parties do not reach an agreement, the conciliation authority will issue a certificate of non-conciliation and the parties can go directly to trial.