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.
Gloria Ponce de León & Hernández
The Labor Reform in Mexico is one of the issues that is of great importance today. Since this reform aims to put working conditions in order for all parties involved in the labor relationship, this reform has an impact on many areas of life in Mexico
Why should a collective bargaining agreement be legitimized?
- A way to terminate the collective contracts that exist in the Conciliation and Arbitration Boards, but are not reviewed because they are protection contracts, or inactive contracts that were not formally terminated.
- To avoid simulation in collective bargaining, the procedure for legitimizing existing collective contracts is established; an obligation that all unions must fulfill before May 1, 2023.
- All new collective agreements and their revisions must be approved by the workers through personal, free, direct and secret vote.
- If the workers do not legitimize their collective contract, it will be terminated but the workers will retain the rights and benefits acquired.
Legitimation of existing contracts:
- Its foundation is the Eleventh Transitory Article of the Decree of May 1 that amended the Federal Labor Law.
- It will be done only once, so all unions must legitimize their existing collective agreements before May 1, 2023.
- Its purpose is to ratify the content of the existing collective agreements, deposited before the Conciliation and Arbitration Boards at the local and federal level, through the personal, free, direct and secret vote of the workers.
- If the majority of the workers vote in favor of the collective bargaining agreement, the Ministry of Labor and Social Welfare, while the Federal Center for Labor Conciliation and Registration comes into operation, will issue the proof of legitimation.
All collective contracts that are deposited with the Conciliation and Arbitration Boards must be legitimized.
The initial collective contracts and comprehensive reviews that are carried out before the Federal Center for Labor Registry Conciliation, through a democratic consultation that complies with the requirements of the law and is ratified by the authority, will be considered legitimate.
Gloria Ponce de León & Hernández
On May 04, 2021, the reforms of articles 51, 53, 56, 57, 59 BIS and 86 of the Hydrocarbons Law was published, in which permits to transportation, storage, distribution, compression, liquefaction, decompression, regasification, commercialization, and Expenses to the Public of Hydrocarbons among others are restricted.
However, we must emphasize that those affected by this reform are the permit holders, that is the natural or legal persons owners of a permit for the authorization of the activities that can be carried out for transport, storage, distribution, compression, distribution and sale of gasoline, diesel and other fuel vehicles.
How permit holders can defend against this reform?
The defense of the case is the “Juicio de Amparo Indirecto” (judicial proceeding), for the above, the interested party must be a permit holder in accordance with the provisions of the Hydrocarbons Law, either by the publication of the reform, as well as permit holder is seen affected by said reform.
Gloria Ponce de León & Hernández
On April 23, was published on the Federal Official Gazette (DOF) the reform of several laws, including the Federal Tax Code, the Income Tax Law and the Value Added Tax Law, derived of this reform, new restrictions and / or prohibitions, administrative and verification burdens are imposed on taxpayers who hire or provide specialized services or subcontract personnel, which would affect the deductibility of their expenses, and even have effects such as fines and penalties detailed as it follows.
- Tax Deductibility.
Payments or considerations made for the following assumptions will not have tax deduction or accreditation effects for purposes of VAT and ISR Law.
- Those carried out for the subcontracting of personnel to carry out activities related to both the corporate purpose and the predominant economic activity of the Employer.
- The services in which personnel are provided or made available to the Employer when the workers that the Contractor provides or places at the disposal of the Employer, have originally been workers of the latter and have been transferred to the Contractor, through any legal form.
Contractors that provide specialized services or the execution of specialized works shall be provide to the Contracting Party and the Tax Administration Service (SAT) no later than the last day of the month following the day in which the Contracting Party has made the payment for the service received and the tax has been transferred to it, the following information and, the Contractor will be obliged to collect the documentation within the indicated period, otherwise it shall present a complementary declaration in which reduces the amounts that would have accredited for said concept.
- Registration with the Ministry of Labor and Social Welfare.
- The tax receipts for the payment of wages of the workers with whom they have provided the service or executed the corresponding work.
- Receipt of payment issued by the banking institution for the declaration of the full amount of the tax withholdings made to said workers.
- The payment of the employer’s worker fees to the Mexican Institute of Social Security.
- Payment of contributions to the Institute of the National Housing Fund for Workers.
- Joint and several liability.
The Contracting Parties will have joint and several liability with the Contractors who update the following assumptions.
- The Contracting Parties who receive services or contract specialized service works or the execution of specialized works, for the contributions that would have been caused by the workers with whom the service is provided.
- Infractions, aggravating factors, fines and Criminal Offenses.
The following assumptions will be considered infractions:
- When the Contractor doesn´t comply with the obligation to provide the Contracting party with the information and documentation that proves the contributions that have been caused by the workers with whom the service is provided.
The fine for this infraction could range from $ 150,000.00 to $ 300,000.00 for each obligation to provide information not fulfilled.
The following assumptions will be considered as aggravating factors in the commission of an infration.
- Carry out the deduction or accreditation of those payments made for the subcontracting of personnel to carry out activities related to both the corporate purpose and the preponderant economic activity of the Contracting Party and, the services in which personnel are provided or made available to the Contracting Party when the workers that the Contractor provides or makes available to the Contracting Party, originally they have been workers of the Contracting Party and have been transferred to the Contractor, through any legal form.
The following assumptions will be considered as criminal offenses and will have the penalties indicated below.
- Anyone who uses simulated schemes for the provision of specialized services or the execution of specialized works commits the crime of tax fraud.
The amount of the contributions defrauded in the same fiscal year will be taken into account, even in the case of different contributions and various actions or omissions, the penalties to be considered are the following.
- With imprisonment from three months to two years, when the amount of the defrauded doesn´t exceed $ 1,932,330.00.
- With imprisonment from two years to five years when the amount of the fraud exceeds $ 1,932,330.00 but not $ 2,898,490.00.
- With prison from three years to nine years when the amount of the defrauded is greater than $ 2,898,490.00.
Lic. María Galaviz.
Gloria Ponce de León & Hernández
As a result of the amendments to the Federal Labor Law published on April 23 of this year in the Official Gazette of the Federation, companies must make adjustments to comply with the new provisions and may only subcontract services or specialized works or the execution of specialized works that are not part of the corporate purpose of the company or that are not part of its main economic activity. The companies must be registered in the Public Registry of Contractors of Specialized Services or Specialized Works, for which purpose the provisions for the Registry of individuals or legal entities that provide specialized services, issued by the Ministry of Labor and Social Welfare, were published in the Official Gazette of the Federation this day.
Companies that provide specialized services will require authorization from the Ministry of Labor and Social Welfare, to be renewed every 3 years; in addition, they will be registered in a public registry.
Among some of the requirements or requisites that need to be added to the notice or the registration to the registry are:
1.- Commercial Name, and corporate name;
2.- Federal Taxpayers Registry;
3.- Federal Entity;
4.- Total number of workers;
5.- Specialized economic activity according to the catalog of activities for the classification in the companies in the insurance of labor risks, of the Mexican Institute of the Social Security;
6.- Activity or activities to be registered in the register, among others.
Companies must carry out an exhaustive review of their contracts with various suppliers and with the individual contracts of their workers, in order to comply with the new provisions of the labor reform, although we are talking about an elimination of outsourcing, we are talking about a regulation and limitation of outsourcing, i.e. that outsourcing is the exception and not the rule.
Companies will have three months to incorporate their outsourced workers as permanent employees. With the exception of those services or execution of specialized works, as long as the contractor is registered in the public registry.
Companies or employers that resort to the rendering of specialized services with a contractor that fails to comply with the obligations with its workers, will be jointly and severally liable for the workers involved.
In tax matters, payments for the subcontracting of personnel will not have tax effects of deduction or crediting. Likewise, irregularities will be prosecuted as a tax fraud crime, so companies should take this issue into account.
Génesis Moyeda Salazar
Gloria Ponce de León & Hernández
During the past month of April was approved for the Senator Chamber the creation of Padrón Nacional de Usuarios de Telefonía Móvil (PANAUT), which consists basically in a database with the information of the users of every telephone line across the country for exclusive use of the authorities.
The controversy reform to the Ley Federal de Telecomunicaciones y Radiodifusión was harshly criticized for individuals and law professionals because of the personal interpretation given by many that may result even unconstitutional in many different ways, mainly because the lack of guarantees to protect the personal data given and the grant of this personal data in hands of a third party involved.
In protection against this reform, the law foresees the Constitutional Trial, as a legal way to present the Authority the grievance caused by this reform.
The legal term to file the Constitutional Trial, counted from the day of the publication, expires on May 31st 2021. Also, in case the Trial were solved against there is an option to file a Review resource in order to the case to be studied by another authority and proceed with the definitive suspension of the facts that motivate the filling of the claim.
However, assuming that any particular acquires a telephone line after the day the term expires to file the Constitutional Trial mentioned before, the legal term to file a new one is 15 days counted from the day the line was acquired and it should be file before the competent authority.
From the other side, if any National Authority foresees that the mentioned reform results against our Constitution this may, by their own, file an Unconstitutional Action before the competent authority in order to expose their arguments and try to get declared against the Constitution.
Gloria Ponce de León & Hernández