Faced with inequality, companies opt for filing amparo suits against the reform to outsourcing

Organizations highlight that there are three key issues in the process: discriminatory treatment, retroactivity and lack of clarity on the timing for the procedures.

Given the approach of the end of the 90-calendar day term specified by the reform on subcontracting, also known as outsourcing, at least 135 companies have resorted to filing amparo suits against the reform. It should be noted that the majority of the companies are Pymes [small and medium-sized companies], but there are also large corporations from various sectors, such as PepsiCo, Gamesa, Sumesa, Comercial Mexicana, Siemens and Mary Kay Services.

Federal courts in Mexico City and Monterrey have received the writs of amparo that present complaints and concerns about the reform, in general, but there are others that request the annulation of the 90-day period for the transition of personnel that worked in the outsourcing mode to personnel employed by the true employer, according to Reforma.

However, the very process and admission of the amparo suits is complex because there is a division of points of view between the judges on labor matters and the judges on administrative matters, as the former state that these are administrative issues, while the latter maintain that they are labor issues.

This scenario was predicted by specialists, especially because companies cannot enter into outsourcing agreements since April 24 of this year, which is not the case for the federal government, for whom the reform will enter into force on January 1, 2022.

In this sense, El Economista explains that companies are not opting to file amparo suits because of the prohibition established by Article 12 of the Federal Labor Law, which makes reference to subcontracting, but because of three situations that they have detected during the process for the application of the new regulations:

• A discriminatory treatment on making the changes in labor relationships and absorbing workforces at 100% as their employer, since the private sector is given three months [to complete this procedure] while government entities are given a year.
• Retroactivity, because companies already had entered into hundreds of contracts and it is argued that the publication of the reform cannot invalidate other acts.
• A lack of clarity on the timings that apply for making the changes, once companies offering specialized services have registered, because the criteria to be used in the new inspections are not known, specialists agree.

In this regard, Óscar de la Vega, founding partner of De la Vega & Martínez Rojas, said that “it is clear that the reform on subcontracting matters is good, as it seeks to eliminate the cancer that was caused due to the misuse of this mode, companies have already stopped using insourcing.”

But the expert pointed out that “the problem lies in its application, and if the first provisional stay has already been granted, we do not rule out that the next ones will follow very quickly, in a cascade.”

For his part, Ricardo Martínez Rojas, founding partner of De La Vega & Martínez Rojas, points out that “at this time, amparo suits against the law itself cannot be filed because the term to do this ended on June 6 of this year.” However, he says that “they can still be filed against the first act of application of the law; for example, when subscribing to the Public Registry of Contractors of Specialized Services or Works.”