As is well known, on April 23 of this year, important reforms in labor matters were published in the Official Gazette of the Federation, incorporating the prohibition of subcontracting personnel, establishing the fact of being able to exceptionally subcontract specialized services or the execution of specialized works that are not part of the corporate purpose or the main economic activity of the beneficiary of such services.
In this sense, those complementary or shared services or works rendered between companies of the same corporate group may be considered as specialized, provided that they do not form part of the corporate purpose or of the main economic activity of the company receiving them.
For this reason, within the Reform to Article 15 of the Federal Labor Law, it was established that individuals or legal entities that provide subcontracting services must be registered before the Ministry of Labor and Social Welfare; such registration will have a term of 3 years and must be renewed after such term has elapsed. In order to register, the following requirements must be met:
- The main one: they must be up to date with their tax and social security obligations with the Tax Administration Service, the Mexican Social Security Institute and the National Workers’ Housing Fund Institute (Instituto del Fondo Nacional para la Vivienda de los Trabajadores) as of the date on which the application for registration is made.
- The process will be carried out online.
- They must have a valid employer’s registration
- They must establish with precision the service they wish to render or the type of work they wish to execute. For each of said activities they must accredit, under oath, the specialized nature of the same and describe the elements or factors that support this exceptional nature.
- In order to prove the specialized nature, information and documentation shall be provided, according to the requirements of the platform, regarding: training, certifications, permits or licenses that regulate the activity, equipment, technology, assets, capital stock, machinery, risk level, average salary range, experience, among others.
The specialized services or works to be registered must be contemplated within its corporate purpose.
Once the required documentation has been uploaded, the Secretariat will assign them a tracking folio and will have 20 business days to issue the corresponding registration notice. Once said term has elapsed without the registration notice having been issued, the registration will be deemed to have been effected for all legal purposes. The term to resolve the request for registration, provided for in Article 15 of the Federal Labor Law, will begin to run from the date of receipt of the request.
It is important to take into consideration that the Ministry may require at any time, additional documentation from the applicant or governmental entity to corroborate and validate the information provided.
However, it is likely that the Secretariat may deny the registration when any of the following assumptions are present:
- Failure to accredit the specialized nature;
- Not being up to date with tax and social security obligations before the Tax Administration Service, the Mexican Social Security Institute and the National Workers’ Housing Fund Institute.
- Failure to comply with the requirements and requirements established in the agreement;
- Providing false information or apocryphal documents, without prejudice to the legal actions that may be applicable, or that the documentation uploaded to the platform has not been in the established format or are illegible.
- Refusing to comply with the requests for information or complementary documentation required by the Secretariat.
- It is detected that the data entered in the platform are different or inaccurate with respect to the data and information contained in the documents entered.
Likewise, such registration may be cancelled for the following reasons:
- Providing services or specialized works not registered in the Register;
- Providing services or specialized works that are part of the corporate purpose or predominant economic activity of the beneficiary;
- There are debts for firm credits derived from non-compliance with tax and social security obligations with the Tax Administration Service, the Mexican Social Security Institute and the National Workers’ Housing Fund Institute;
- Failure to comply with the requirements or requirements that served as the basis for granting the registration;
- Failure to comply with the provisions of the Federal Labor Law on subcontracting;
- Refusal to comply with any request for information or documentation required by the Ministry;
- Failure to renew within the term established in the second paragraph of Article 15 of the Federal Labor Law.
Once the Secretariat notices the possible non-compliance, it will notify the individual or legal entity so that within a term of five business days it may state what it deems appropriate, and if applicable, it will decide what is appropriate.
Finally, the renewal process must be initiated within three months prior to the date on which the registration expires.
Another aspect to be taken into consideration is the fact that all individuals or legal entities that obtain the registration will be obliged to fully identify their workers by means of the image, name, badge or identity code that links such workers with the company that provides the specialized service or performs the specialized work during the performance of their work in the facilities of the company that contracts the services.
The contracts that the contracting companies enter into with companies that provide specialized services or perform specialized works must include the registration and folio of the activity or specialized work in force of such companies.
Through the Platform it will be possible to verify at any time the registration and the validity of the same of the companies that provide specialized services or execute specialized works.
All of the above is of utmost importance to contemplate, this derived from the verification powers of the Ministry of Labor and Social Welfare and, therefore, in case of non-compliance with the above, it may even result in a fine for your company.
If you have any doubts, go to an experienced lawyer specialized in labor issues, we have a qualified team to solve your doubts.
Carolina Áviles
Gloria Ponce de León & Hernández
