Labor Law in Mexico and Reforms
The work will first consist of knowing the reason for the need to reform half of an entire normative body, which can She consecrate themselves in front of all workers invariably of the social class, race, religion, skin color. The paradigmatic importance that this reform has is such that another of the points to be analyzed in this study is on the material changes that lead to the reform, we will discriminate among the simple gender modifications, which become a response to the social change of equal nature between Men and women, and "matter" that within this item will make an analysis, and a proper criticism of the measures taken for as any law that in an abstract and impersonal way respond to social demands. Finally, we will foresee in the instance of prophets to our criteria which will be the near future of the labor reform regarding its implementation in Mexico.
A) The reason for the reform
On December 22, 2018, the initiative that reforms, adds and repeals various provisions of the Federal Labor Law, on behalf of the Morena Parliamentary Group, is published in the Parliamentary Gazette, in which they indicate that they first have the obligation to Reform the Federal Labor Law since the reform of article 107 and 123 of the Political Constitution of the United Mexican States promulgated on February 24, 2017 is an answer that to the need for the modernization of the labor justice system that entails The organic and systematic implementation of improvements to the law.
The Morena parliamentary group establishes that the first condition of a democratic regime is the validity of the rule of law that supposes that we are all subject to legal order and that the violations of legality will be sanctioned in due course, it is for this reason that they intend to do a due justice labor that is independent of the Executive Power, and in turn justice is taught by the Judiciary, to achieve: greater certainty to the worker in his employment and salary and avoid the abuses in the alleged exercise of rights, as fraudulent demands that discourage Creation of more jobs.
After the aforementioned reform, on September 20, 2018, the Senate of the Republic ratified Convention 98 of the ILO. That deals with the right of collective syndication and bargaining, the agreement serves as an instrument for countries to feel the basis to achieve: full freedom of collective bargaining and the elimination of any sanction to workers by belonging, not belonging or stop belonging to a union. In addition, establish the obligation of the State to guarantee the independence of trade union associations, as well as prevent them from being dominated by an employer or an organization of employers, regarding everything concerning their training, operation and adsinsitration.
In addition to the reform of the aforementioned constitutional articles, it had great relevance for the reform that on September 30, 2018 ended the commercial negotiations between Mexico, the United States and Canada, which concluded in the consciousness of the USMCA, which in its Annex 23 establishes The labor chapter that precisely mentions the guidelines under which the new constitutional principles must be regulated and determines the ratification of the agreement to the prior adoption of the countries involved in adopting these measures through legislative changes.
In the exposure of reasons, Parliament, affirms that simulation and corruption were components of the old labor arrangement, which produced a negative imputation in public morals, education and insertion of quality jobs, and based on the three frames regulations above stated (the Constitutional Reform of February 2017, Convention 98 of the ILO and Annex 23 of USMCA) guides the regulation of constitutional principles in the Federal Labor Law to guarantee: access to independent and impartial justice, as well as free and full exercise of the collective rights of workers. And through these points a new labor model is prepared that enables respect for the rule of law and the validity of the principle of union representativeness.
According to the exposure of reasons, the most relevant aspects in the reform will be listed:
1- A trade union democracy and freedom of collective bargaining.
Establish the Federal Center for Conciliation and Labor Registry. With functions of an autonomous decentralized body, in charge of the Registry of Trade Unions and Collective Contracts, at the Federal and Local Level, it also has the powers to reconcile workers-patron conflicts.
To establish a union democracy, the aspects to be contained in the trade union statutes such as those referring to the procedure for the choice of union directives, the deadline for calls, voting and integration places of a reliable break of the members of the union and the prohibition of an indefinite term for the duration of the directives.
For the unions already created, the requirement of review is established for "the next 4 years" . Also obtaining the constancy of representativeness will require at least 30% of workers attending the vote.
2- Gender and DDFF perspective.
A measure for the assurance and immediacy of justice of women is that the workers of discrimination due to pregnancy are exhausted, as long as they are victims of labor trafficking, in the statutes of unions it must be established that integration of union directives will be formed proportionally by gender. As a precautionary measure and at the founded request of the pregnant worker, the judge must require the employer to refrain from discharge from the IMSS in case of being fired. An obligation to patterns to implement a protocol to prevent discrimination for gender reasons. And in judicial matters a substitution of the complaint in the case of discrimination due to pregnancy or gender identity.
3- New labor justice.
Judicial instance on labor-patron disputes. The conciliation instance will be a prejudicial requirement, which will be carried out through a simple, easily accessible procedure, which privileges a friendly composition. An oral procedure with a written phase. The conciliation will be taken before conciliatory officials specializing in conflict resolution and mediation, independent, professionals and impartiality, which will not be able to exceed 45 calendar days for processing.
In labor judgments, technical legal forecasts on issues of form and the formalities of the procedure should not become obstacles to the judge, who must unravel the truth of the facts before him raised and pronounce accordingly. The evidence must be offered and accompanied from the demand brief and the response of it.
1- The entry into operation of the Federal Center for Conciliation and Labor Registry is set at two different deadlines:
- While registration functions must begin within a period not exceeding two years since this decree enters into force.
- The conciliatory functions must initiate at the same time that the labor courts of the Judicial Power of the Federation initiate their functions, without the latter term being able to exceed four years to said entry into force.
2- As far as local labor courts are made that will be in charge of the judicial powers of the federative entities, as well as the conciliation centers of said entities, they must enter into functions within a period of three years since between in force of the reform, so it is provided that in that same term the necessary inter -institutional coordination will be carried out so that both organs enter into operation simultaneously. The above requires that within this period its structure be established, judges are trained, as well as the legal and administrative personnel that must be in charge of these institutions.
3- Regarding the Federal Center for Conciliation and Labor Registry, it is expected that the conclusion of the registration services that are currently in charge of the Conciliation and Arbitration Boards, the Ministry of Labor and Social Welfare and the Executive Powers of the federative entities, it is carried out once said center initiates its registration functions, which must be carried out within two years counted from the entry into force of this decree. To do this, the guidelines are established under which the referred authorities will transfer files to the National Center for Conciliation and Registration, which will begin by delivering a relationship of files that will be made in electronic media; For this purpose, it is expected that the transfer of files in electronic media must be sent to said Federal Center for at least six months before it initiates its registration activities, while the procedure for transfer of physical files must conclude within a period no more than one year after the start of the registration functions of said center; In the transitory provisions it is established that until as long as the labor courts, the conciliation and arbitration boards will continue to know and solve the labor conflicts until their conclusion, in accordance with the Federal Law of Labor in force before this reform, remaining, leaving before this reform, leaving, leaving defined the deadlines in which the provisions established in this reform must enter into force;
4- The creation of auxiliary courts that will meet the demands of ownership without strike site, which will begin to operate within six months of the entry into force of the Reform Decree and will develop their functions until as long as the Labor Courts will begin and the Federal Center for Conciliation and Labor Registry, in order to comply with the constitutional right of workers in the field of union representativeness and majority support of collective work contracts and that ownership is resolved shortly;
5- Within a term that will not exceed 120 days from the fact that the reform between in force, work plans must be defined for the conclusion of the issues that are in process in the conciliation and arbitration boards, local and federal, local and federal, including those who are in execution:
- Deadline to issue Organic Law of the Federal Center within the hundred and eighty days that this decree enters into force
- Start period of functions of the registration authority not exceeding two years from the entry into force of this Decree
- Start term of functions of the local conciliatory authority and local courts. Maximum period of three years from the entry into force of this decree
- Issues in process will be completed by these in accordance with the provisions in force at the time of its beginning
- Legitimation of collective work contracts at least once during the four years after the entry into force of this decree.
D) What will happen with the reform
This paradigmatic reform entered into force on July 2, 2019, we remain in the uncertainty of what will happen, Table 1 shows the times in which the implementations to which the Legislative Power was committed to the reform of the reform must be carried out when promoting the reform when promoting the reform.
The most interesting thing to analyze is about the construction of the Federal Center and Labor Registry, since it will not be only one but several within Mexico, in the same constituencies as the current conciliation and arbitration joints.
The importance of federal centers and labor registration is that the Executive has a period of 3 years to undertake the operation in which anyone who tries to exercise a labor action will be received, this is due to the now need to exhaust the instance of The conciliation, I consider that these centers are one of the most important axes of the reform, of course there are also requirements for the current Conciliation and Arbitration Board such as liquidating all the files that are initiated until the moment when the new center is Able to go into fun. The most interesting thing that makes us complicated the task of providing a future application of the reform is that in the same transitory of validity to enter into the centers establishes in its final part that, the implementation of the centers must be done in terms of What establishes its own regulations and budgetary possibilities in accordance with what its local powers determine, that is, in the case of Nuevo León, it constantly requires the federal authority to distribute more equitable resources in accordance with the provisions of each state entity, In order to conclude with works that are initiated but not completed by budget insufficiency, in this case the doubt about how much resource will be required to implement these centers is something that today is not an urgent issue for the Government of Nuevo León.
The economist estimates that implementing the labor reform will cost 2,223 million pesos, we consider that from this, any of these 2 assumptions will be susceptible to reality that when the date established by the transitories is reached by the transitory the construction is newly started, what that would make it impossible to apply the reform leaving anyone who intends to exercise a labor action in greater uncertainty than it was intended "New Center". What leads us to the analysis of the second phase of the reform that is of specific interest to deal with, this is in terms of labor justice and the creation of labor courts, labor and other branches of law are equally exceeded as soon as to the excess of files and the lack of personnel to resolve them, on the jurisdictional personnel in labor matters due to the reform I consider and anticipate that they adapted through courses to the presidents of the Boards to serve as judges of the new labor courts, since also the dismissing government workers who work at the Board would be detrimental in two issues that cannot be an economically viable option since by covering the contingencies of layoff Board workers, second because of the experience of these workers is such that and be wasted and less when in Nuevo León they have been presenting results that are promising, and when trying to renew the entire work structure of the courts it can cause in a catastrophe who the most harmed would be the governor.
To anticipate any political issue in Mexico implies a complication such that it can independently surprise the scholar about the way in which the duty-being of what is really contrasting. The labor reform is not the exception being an international response for the treaty with the neighboring countries of the North and the ratification of Agreement 98, and internally with a presidential change that has claims to be a transformation in Mexico, it causes that in 4 years we will not control as a nation, and as a group of jurists the path that would take or the guidelines of politicians in turn to provide legal certainty of legal matters, this being the matter that we highlighted at the beginning that has applications for most Mexicans, independently of social classes. We have encouragement and intentions in believing that the fundamental intention of the reform is to protect legal certainty and as mentioned in the exposition of reasons to guarantee a rule of law, but the intention serves as much precisely in an exposition of reasons, but when it is intended Integrate it into a legal reality where it is already rooted in forms that are carried out results in a greater uncertainty than the pretending to be protected, labor justice was being carried out and perhaps not in the best way but on the specifications we can improve , but I don’t know what to expect us with the collapse of an entrenched institution and the construction of a new one that has no head or head.