The Guide for individuals or entities that execute specialized services or works, and the Rulings issued prior to it being approved in labor matters by the Department of Labor and Social Welfare (STPS) are contradictory. “They are absurd, and this is very serious. We think it is an aberration. They are not even the substance of the reform, they contradict it.
They repeat “… that a company will have to register, precisely when it makes its own workers available or provides workers to the contracting party…”, which, deep down, is highly contradictory because then, the absurd prohibition defined by the new law on subcontracting would not be complied with”, said Ricardo Martínez Rojas, PhD.
The specialist in Labor Law specifies, in an interview: “There is a willingness to comply, but an absurd law cannot be complied with. It is not about violating the legal framework, no. What we are trying to do, us and thousands of very serious Firms is to seek a way for complying and help clients understand the law and comply with it”; he pointed out.
About the contradictions, he explains: It is said “…that a person goes, temporarily or for an indefinite time to the establishment of the contacting party ,,,”, with this simple condition, alone, you have an obligation to be in the REPSE [Registry of Specialized Services or Specialized Works]. “The truth is that it is a very serious and contradictory situation”, he tells El Sol de México.
He explains: For example, you request a plumber to come to your facilities, to fix pipes or certain things for one day. “Imagine the madness of requiring the REPSE from all of those people and entering into a contract.”
Additionally, on the other hand, there is the cost of verification for companies.
“It appears that these new criteria issued by the STPS, in addition to contradicting the reform, as they make compliance with it impossible, as the sole fact of a person going to your facilities in no way means that they are under your orders.”
Martínez Rojas, founding partner of the De la Vega & Martínez Rojas Firm, emphasizes: “The criterion adopted by the STPS is seriously wrong in our opinion because, ultimately, we will all end up registered at the REPSE”.
For example, a lawyer sometimes needs to go to a client’s office. If all auditing Firms send their accountants, under their own dependence, nobody will be giving them instructions. They will review documents, the return or the financial statements.
Occasionally, the accountants or the auditor are sent to conduct part of the audit at the company. And so on, thousands of cases. “This is why, in our opinion, the criterion issued by the STPS is absurd, in the sense of intending that every person that goes to the facilities of one company or another, whether temporarily or definitively, has to register at the REPSE. This, in my opinion, is very serious,”
All auditing Firms send their accountants, under their own dependence, nobody will be giving them instructions. They review documents to prepare the Return, to prepare the financial statements.
This does not mean that they are under the orders of the contracting party They continue to be under the orders of the contractor. We believe this is an aberration, it is not even the substance of the reform, it contradicts it.
THE DAMAGE: YOU WILL NOT BE ABLE TO DEDUCT TAXES
Regarding damage to companies, he states that the worst thing that the reform says is that if you are not registered in the REPSE you cannot deduct taxes: the Income Tax that you paid for that service or you cannot accredit the VAT, which truly seems to be an exaggeration and absurd.
“It is a very narrow criterion, one that goes too much against the businessman, as establishing those directions that the contracting party can give orders, instructions on the work or services that he orders or are carried out. That is true subcontracting. It is not a person going to a company for any cause.”
He maintains that a deeper analysis of these Criteria needs to be conducted. “It does not mean that we do not want to be in compliance. There is a willingness to comply, but an absurd law cannot be complied with”.
“What we are trying to do, us and thousands of very serious Firms is that it is a new reform, and we are seeking the way for complying and we are helping clients to understand it and comply with it; nevertheless, faced with Criteria that are impossible to comply with, who will be able to comply with this reform”, he said.
Criteria must be subject to compliance; complying must be a true possibility. “I believe that saying that Lawyers’ Firms do not want to comply is an unwarranted attack. We want to comply, and we support that our clients comply, and we advise them to do so.”
In regard to the information provided by the STPS that 60 thousand companies have subscribed in the REPSE and 20 thousand are in the process of being registered, doctor Martínez Rojas considered it as progress. “We believe that the number of companies is of around 100 thousand.”
And, just as he noted the contradictions, he also pointed out that “ in the last days for registration, the STPS showed an attitude of trying to help in the success of registration. The Department did have a very positive attitude of facilitating that registration was granted.”
“It was very well done . They set aside the portion corresponding to the Infonavit [National Worker’s Housing Fund Institute], which did not work properly in the platform and the truth is that the Department did well in that area, it truly applied itself on the last days to great many registrations. And this does deserve a gold star. There was a good disposition to help companies to move forward.”