Note published on January 20 in El Economista, Empresas [Companies] Section by María del Pilar Martínez.
Read original source
Employers seek a correct interpretation of this Law, for example, on the payment of the vacation bonus.
20 days after the reform on vacation matters entered into force, employers are already requesting the publication of guidelines to help in the correct “interpretation” of its application and, in consequence, on the payment of the vacation bonus, as the reasoning is that the days worked in 2022 be paid in accordance with the previous law and not in line with the reform that entered into force on January 1, 2023.
The foregoing has caused intense debates not only because of the impact that the application of the reform, which doubles the number of vacation days, will have on companies but also because in contract negotiations in the past, the payment of the vacation bonus was used as an alternative to salary increases and, thus, there are companies that pay between 40 and even 100% as a vacation bonus.
It should be noted that Article 80 of the Federal Labor Law establishes that workers have the right to a vacation bonus of no less than 25% of the salaries that would correspond to them during the vacation period, which represents a high risk for companies under these schemes, which will have to be reviewed, as the number of vacation days had not been modified for years and they didn’t have a significant impact on the company’s finances.
For congresswoman Susana Prieto Terrazas, however, this interpretation is “seeking to rob the workers”, given that the law is not subject to interpretation; nonetheless, businessmen want it to be modified. “They want to rob the workers of their vacations and give the vacations to the workers in 2024; their reasoning is that vacations become payable at the date in which the worker reaches his anniversary”, she explained.
In this sense Prieto Terrazas stated that she will prepare a proposal arising from the legislative that will prevent any improper interpretation; therefore, she proposes: “that the employer has the obligation of scheduling the vacations that the worker will enjoy during the year 60 days before the date of the worker’s anniversary and to give the worker this calendar in writing.”
She adds, “in the event that the employer fails to comply with this obligation, the worker may appear before a Judge in labor matters and start summary proceedings, which will be ruled upon within the following 15 days and the employer will be penalized through the obligation of doubling the vacation period that was not granted, with the corresponding vacation bonus. as penalization for non-compliance.”
Negotiation will be the key: specialists
This situation relating to interpretation should not reach the courts, “the sensibilization of unions and employers will be important; despite the fact that there are those who want to challenge, it will be more important to negotiate based on each one’s conditions, this is why we must try to reach a solution by mutual agreement, without the threat of inspections, amparo proceedings; because the Law is in fact ambiguous, possibly in a deliberate way, in stating that “the vacations from 2022 must be treated in accordance with the rules of 2023, and this is not the case”, said Fernando Yllanes, a labor specialist in the business sector.
Ricardo Martínez Rojas, partner at the D&M Abogados Firm, said that “it is not about harming the employer, particularly since 80% or 90% are small businessmen. Thus, they must consider that “if the worker had an anniversary in 2022,and the vacations will be given in 2023, the new table does not apply; but if he worked half the year of 2022 and the other half in 2023, then the new table applies”, he pointed out.
A person receiving two minimum wages, 414.88 pesos per day, would receive 622.32 pesos as a vacation bonus, before the reform; considering the 12 days, he would receive 1,244.60 pesos.
