Mercantile and commercial services are exempt from the outsourcing registry: STPS

Note published on May 21 in El Economista, Capital Humano [Human Capital] Section by Gerardo Hernández.
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The Department of Labor clarified that activities deriving from mercantile contracts, such as accounting, legal and consulting firms, are not considered to be specialized services and, therefore, do not require the new registration to operate.

Activities deriving from a commercial or a mercantile relationship are exempt from being required to register in the registry of subcontracting companies, clarified Alejandro Salafranca Vázquez, head of the Unit for Dignity in Labor of the Department of Labor and Social Welfare (STPS).

For example, the provision of accounting or legal services or those of advertising agencies are some of the activities that can be offered in the business market without having to register, as long as they do not place workers at the client’s service.

“If the relationship they have with their contracting parties is purely commercial and workers from those firms are not placed at the service of the end client, this is not the case regulated by this law, which is neither a commercial nor a mercantile law, it is a labor law. Therefore, if there are no personnel involved, it would not apply to them”, explained Salafranca Vázquez during the webinar “Reform on subcontracting matters, what comes next?”, organized by the agency.

Businesses that do have to register in the registry of subcontracting companies are all of those who provide an activity with workers at the client’s service, such as cleaning or security services, to mention some of the most common cases.

“But if there is only one contract, an invoice is paid for a service in kind, a service in cash, with no workers at the service of the client, this does not apply to them”, the official reiterated.

Article 1 of the guidelines for the registration of subcontracting companies establishes that the provisions of the registry apply to entities or natural persons that “perform specialized services or carry out specialized works and, to these ends, provide their own workers or place them at the service of another, for the benefit of the latter, to perform the services or carry out the specialized works.”

From the perspective of Óscar de la Vega, partner at the D&M Firm, the statement made by Alejandro Salafranca and Article One of the provisions of the registry help clarify and delimit activities that can be provided without the need for registration, although it would be necessary to define expressly what is interpreted to be subcontracting.

“It would be necessary to provide further clarification on which contracts do not fall within the scope of Article 13 of the Federal Labor Law, which are these commercial or mercantile relationships. There is an extensive lack of information, the regulation is not sufficiently clear, starting with Article 13, which ended up being quite open ended”, said the specialist.

Among the amendments to the Federal Labor Law approved by Congress as part of the reform on subcontracting, it was established that third-party provision of specialized services or works will be permitted as long as they are not part of the corporate purpose or of the main economic activity of the company, provided that the contractor is registered before the Department of Labor.

In the opinion of Óscar de la Vega, this regulation left the possibility open for the need of all commercial activities to be provided under the new regulation; it could even be interpreted that, in order to offer professional services, one would also have to be registered with the STPS. Although the provisions of the registry provide greater clarity in this regard, the specialist considered that the rules should be further delimited in order to avoid confusion.

“In the automotive industry, for example, car assemblers have industrial corridors around them, with multiple suppliers and they go into the production line and assemble the dashboard, the harnesses for you. I believe that this does not fall within subcontracting, because a certain number of dashboards is bought from the supplier and he assembles them, they are conducting an activity derived from a mercantile contract, without reaching the point in which the assembler says that everything is specialized and has no workers”, explained the specialist.

There is no list of specialized activities

Alejandro Salafranca Vázquez announced that the guidelines for the operation of the registry of subcontracting companies will be published next week. The National Commission for Regulatory Improvement (Conamer) has already endorsed the project delivered by the STPS,

“We have been constantly asked why a list of specialized services or works has not been issued; this is because the specialized service or works for an entity is everything that is not included in its corporate purpose or in its main economic activity. Therefore, something that is specialized for me is not specialized for you”, explained the head of the Unit for Dignity in Labor.

According to the provisions of the registry, at the time of registration, companies must specify the specialized service or works that it will offer in the market, they will be able to choose more than one activity and accredit specialization.

The only service that cannot be chosen for the registry is the provision of personnel, as the new subcontracting regime prohibited this activity in the Law.

Meanwhile, the official of the Department of Labor recalled that the integration of the subcontracted workers into the central workforce of companies, a requirement posed by the reform on this matter, is a process that companies can already comply with and for which they do not need registration.