Note published on July 10 in the Industrias, México [Mexico Industries] Section by the Editorial Department
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Yesterday, the Secretary of Labor and Social Welfare, Luisa María Alcalde, announced that two months after the implementation of the reform on outsourcing matters, 830 thousand workers have left the subcontracting scheme.
In an interview in the El Financiero Bloomberg Program, Ganadores y Perdedores [Winners and Losers], lawyer Oscar de la Vega founding partner of the De la Vega & Martínez Rojas S.C. Firm, spoke about the positive aspects and of the contradictions in this reform, about which he noted:
“More than a reform on labor matters, it is a reform of a tax and an economic nature.”
The lawyer acknowledged the positive aspect of the reform, as it allows finishing with the tax simulation conducted by facturera companies [invoice counterfeiting companies] through monitoring conducted jointly by the SAT [Tax Administration Service], the Department of Labor and the IMSS [Mexican Social Security Institute]. Additionally, it allows combating insourcing, a scheme in which a company is created in order to provide a service to another series of companies within a group and thus operating subcontracting.
The specialist pointed out that the law and the regulations present a contradiction, as the Federal Labor Law, in its Article 12, prohibits subcontracting defined as putting one’s own personnel at the service of another natural person or an entity. Complementing this provision, Article 13 establishes that it is possible to subcontract specialized services, provided that these are not part of the corporate purpose or of the predominant economic activity of the company that receives said services and that these companies be registered in the public registry.
Nevertheless, Article One of the regulation establishes that companies that provide specialized works or services, which entails that they place their own personnel at the service and for the benefit of another must be registered. According to Oscar de la Vega, this definition would create a contradiction with the provisions of Article 12 and gives room for an open interpretation of the regulation.
A reform that discriminates against the private sector
Yet another drawback pointed out by the specialist is the territoriality of the reform, since any activity that implies the presence of a company’s personnel in the facilities of another one is considered to be subcontracting. However, there are many relationships of a civil or of a commercial nature that operate under these conditions and, therefore, would have to be processed in the registry of the Department of Labor, which is a violation of freedom of work, De la Vega pointed out:
In the opinion of Óscar de la Vega , Director and founder of the De la Vega & Martínez Rojas S.C. Law Firm
“Any activity on the inside must be registered, even in the case of commercial relationships.”
He gave examples such as the automotive industry, in which a series of suppliers and industrial corridors revolve around assembly and are an integral part of the process. Also the mining sector, in regard to explosives’ handling or materials’ hauling.
Lastly, he pointed out a discriminatory treatment toward the private sector, which was given a term of 3 months to implement a reform of this importance, while the public sector was given a term of one year.