Note published in Factor Capital Humano, Leyes y Gobierno [Laws and Government] Section by Gerardo Hernández.
Read the note in its original source
Workers will be able to file complaints with the authorities when they find irregularities in the procedure for the legitimation of collective bargaining agreements, a process that is mandatory for all unions in the country.
The legitimation protocol was missing an accurate mechanism to enable workers to impugn the legitimation of collective bargaining agreements, specialists agree. In this context, the Department of Labor and Social Welfare (STPS) tightened the screws in order to close the door on simulations during this process and provide union members with the necessary tools to point out alleged irregularities.
This Thursday, the STPS published in the Official Gazette of the Federation (DOF) changes to the protocol for the legitimation of collective bargaining agreements in order to incorporate a complaint mechanism for the labor force who detects irregularities before, during or after the process. In total, there are 18 grounds for which one or more workers ca impugn the procedure.
Last December, the Committee of Independent Labor Experts, an office located in the United States that monitors the labor reform in Mexico, presented a report to the United States Congress in which it warned, among other things, about the absence of a recourse that allowed workers to file complaints related to the legitimation process and, additionally, about a possible conflict of interest in allowing unions to hire the services of a Notary Public to validate the consultation process
From the perspective of Óscar de la Vega, partner of the De la Vega & Martínez Rojas Firm, the modification to the legitimation protocol is a response to the comments made by this committee. “Responding to this opinion of the expert committee, the authority establishes that, even in the presence of a Notary, the process will be supervised by the Department of Labor and Social Welfare.”
In addition to the new complaint mechanism, the protocol will empower the agency to verify compliance with the regulations before, during and after the consultation, regardless of whether the union opted to have a Notary Public follow the legitimation process.
Regarding the possibility that workers will have to impugn the legitimation process, Alfonso Bouzas, coordinator of the Citizen Observatory of the Labor Reform, believes that the provisions in force were inadequate and an adjustment was required in order to prevent simulations.
“They have realized that a majority in the legitimation of an agreement can be simulated and they are tightening the screws in order to achieve changes and to prevent the same things from continuing to happen. This will guarantee authentic legitimation processes”, said the specialist.
For Óscar de la Vega, the impugnation mechanism is also beneficial. “I believe it is good, because it must be a transparent and democratic process in which workers express their agreement with the collective bargaining agreement.”
Notice of consultation, essential
The legitimation process of collective bargaining agreements was established through the 2019 reform to the Federal Labor Law (LFT), its objective was to depurate inactive and protection agreements through ratification, by the workers themselves, of the contents of the agreement they are under. Unions have a deadline of May 1, 2023 to carry out the consultation to legitimize the agreement.
While the Federal Center for Labor Conciliation and Registration (CFCRL) starts its registration operations, scheduled for May 1, 2021, the STPS will be in charge of verifying compliance with this provision and will be the agency that must be notified by unions about the consultation in which the workforce will vote on the collective bargaining agreement.
In this sense, Luisa María Alcalde Luján, head of the Department of Labor and Social Welfare (STPS) pointed out that workers’ consultations can only be conducted before the labor authority and, therefore, the corresponding notice is essential.
“We have had some cases, very few of them, but I share them here, in which the consultation was conducted without having notified the authority, notifying the authority, after the fact, that they had conducted their consultation and providing the results. This cannot be done in this way, as established in the protocol and in the law itself. The authority must be notified, because the labor authority must be present at the time of the legitimation and of consultation with the workers”, she said during a webinar with the Jalisco Council of Industrial Chambers.
What is new?
Workers will be able to impugn possible irregularities that are detected before, during or after the consultation before the Department of Labor. The complaint may be submitted by one or more workers, in writing or electronically, within the next five days after the issuance of the call for consultation or, otherwise, of the last legitimation procedure.
What is considered as an irregularity? The protocol defines them as “any action or omission that violates the principles of security, transparency, reliability and certainty in voting or that affects the workers’ rights to cast their vote in a personal, free, direct, secret, peaceful, agile and safe manner, when this arises from the verification form issued by the labor authority, from the attestation of facts issued by the Notary Public or from the unconformities filed by one or more workers in regard to the legitimation process.”
In this regard, the protocol establishes 18 grounds for proceeding to the filing of an unconformity. Some examples of these cases are:
» Prior to consultation
- The call was not published at least 10 business days before the consultation.
- Workers did not receive a printed copy of the collective bargaining agreement.
- Acts of violence, intimidation or coercion by employers or union representatives.
» During consultation
- The presence of people not belonging to the union during voting, with the exception of the Notary or of the labor authorities.
- Workers who had the right to vote were prevented from doing so.
- Voting was conducted without the presence of the labor authority or of a Notary.
» After consultation
- The union did not protect the consultation process documentation.
- Results were not published in a visible place.
How to impugn?
Workers must state their unconformity providing the greatest amount of proof. In the absence of proof, the complaint must be supported by a minimum of two witnesses.
The unconformity must be filed with the STPS either in writing or electronically. The agency will assign a folio number for follow-up.
The labor authorities will evaluate the evidence submitted by the workers and may request information from the unions and employers, protecting the identity of the complaint’s petitioners at all times.
In the event that the agency detects irregularities in the procedure, the process will be declared null and void. In another context, if no comments are made, the collective bargaining agreement will be legitimized.
In a statement, the Department of Labor emphasized that the unconformity “will be an assessment element to determine whether the certificate of legitimation is issued or whether the procedure is declared as null and void.”