Note published on May 12 in El Economista, Capital Humano [Human Capital] Section by Gerardo Hernández.
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The Mexican Social Security Institute will conduct monthly updates of a public registry including part of the information of the reports of contracts to be delivered by suppliers of specialized services or works as of this quadrimester.
The Mexican Social Security Institute (IMSS) will create and disseminate the List of Contracts of Specialized Services or Works, a registry of outsourcing companies that will be updated on a monthly basis and will be fed with the data that will be shared by companies through the Informational Bulletin on Contracts for Specialized Services or Works (ICSOE) each quadrimester, based on the report that must be submitted by May 17, at the latest.
The ICSOE is a platform for companies that provide specialized services to comply with the new legal provision established with the reform on subcontracting: providing quadrimestral reports to the social security authority on the contracts that were signed during the previous quadrimester or, otherwise, presenting the informational bulletin with no data when transactions were not recorded.
Unlike the Registry of Specialized Services or Specialized Works (Repse), coordinated by the Department of Labor and Social Welfare (STPS), the ICSOE is a platform for companies that already have the Repse to report their contracts.
This public list that will be created by the IMSS arose from the guidelines of the ICSOE published in the Official Gazette of the Federation (DOF) this last April. The information that will be made public by the IMSS in its website is:
- Name, corporate name or denomination of the contractor and of the contracting party.
- Type of person [individual or entity] both of the supplier and of the beneficiary
- Contract folio
- Contracted service or works
- Start and end dates of the contract
- Number of workers that will be used in the fulfillment of the contract
- Corresponding quadrimester of the informational bulletin
- Year of the informational bulletin
- Type of report
- Folio of the informational bulletin
- Date of submission
With the reform on subcontracting, companies that provide specialized services or works have the obligation of reporting to the IMSS the contracts entered into during each quadrimester; this report is delivered three times per year on the months of May, September and January.
The social security authorities have explained in various forums that the reports delivered through the ICSOE have the objective of marking the limits of the joint and several liability that the contracting party has toward the contractor’s workers.
On the other hand, the same guidelines that give rise to the list of specialized services contracts make the supplementary informational bulletins an official resource for companies to correct or update the quadrimestral reports shared with the ICSOE, also the authorization that may be given by the contractor to the contracting party to consult, in detail, the information provided to the IMSS.
Among the guidelines for the operation of the ICSOE more “teeth” are included to allow the authority to corroborate the information provided by the suppliers of specialized services. The IMSS will have the power to request information and data in writing from the contracting parties and related third parties to confirm the data on the operations reported during the quadrimester by the service suppliers.
“In the event that there is evidence of unreported information or differences between what is reported and what is informed by third parties, the contractor will be notified, giving him 15 working days, from the date in which the notification takes effect, for their correction, report or clarification”, the guidelines establish.
Even though the platform will allow the submission of supplementary reports, which can decrease the risk of a service supplier of incurring in nonobservance, the D&M Abogados Firm pointed out that “only a maximum of four supplementary reports during the same period will be permitted, with the exception of supplementary updates.”
They see danger in the public list
The public list to be prepared by the IMSS has unleashed a series of concerns and conflicting opinions among specialists in labor matters. While some see risks, others believe that it will be a useful tool.
From the perspective of Marco Rojas, senior associate of the Employment Practice at Baker McKenzie, despite the fact that the guidelines seek to provide clarity to the ICSOE platform, the public list that is being considered may “go beyond the legislation.”
“In this list we could be able to see information that may be sensitive for some companies. It could be sensitive information because part of the supply chain of an employer is revealed; if I am an employer that has a supply chain and this supply chain is revealed through the IMSS’s platform and is made public, it is evident that any other person can see to this list and have access to the information of those who may be my suppliers”, the specialist explained.
In practical terms, Marco Rojas specified, through the public listing, a company’s competition could know who its service suppliers are and what services it is contracting “to reach its business model.” Although this is not a risk for all companies, it is in the cases in which the supply chain plays a key role on the competitive advantage of a company.
“The risk can be higher for those employers who have a very extensive supply chain, in which the market or the competition to reach a certain price for a product is very competitive, that is where we believe that this could be a delicate matter, The cases in which we do not believe there is a significant problem is when you subcontract very common services that have nothing to do with your supply chain for a certain product, such as cleaning services, for example.”, the specialist pointed out.
From another perspective, Rodolfo Trampe, a partner at Von Wobeser y Sierra, considered that the guidelines, including the public list, have the objective of allowing the contracting party to validate the information reported by the contractor.
“This is a place in which the contracting party can review the information uploaded by the contractor; this is relevant because we must remember that contractors are jointly and severally liable together with the contracting party. This public list could go a little further, although it should be analyzed in regard to confidentiality and competition matters, but the objective is that the contracting party can also review the information that his service supplier is sharing”, the specialist explained.
Even though it is necessary to be cautious and analyze the first publication of the list, Rafael Trampe explained that, up to now, there are few signs that it will become something that is anticompetitive but that it is in fact a topic that must be evaluated from a multidisciplinary point of view. The specialist explained that despite the fact that the IMSS will make this information public, there is no justification for companies not to comply with their reports to the ICSOE.