In the Political Constitution of the United Mexican States, labor rights are protected within the framework of article 123, referring to Labor and Social Security, after the first Labor Law promulgated by Pascual Ortiz Rubio in 1932, giving rise to the Federal Labor Law of 1970.[8].
Originally in this Law, the figure of subcontracting was not contemplated as a labor regime in the law. However, intermediation was considered a form of “intervention in contracting for the provision of services.” Being regulated in articles 11, 12, 13, 14 and 15 of the LFT.[9].
Towards the Reforms of 2012..
It was not until the North American Free Trade Agreement in 1994 that Mexico joined the globalized world: the capitalist discourse managed it as an open market with the capacity to access large international flows, as well as public and private foreign investment.[10] With the entry into force of NAFTA, 3 fundamental elements are resumed for the implementation of strategies that would help deepen precariousness through substantial changes in the labor area, through these elements in Mexico as in the United States. prioritized the business and banking sector. The 3 elements to consider are:.
Competitiveness: Low labor costs in exchange for greater productivity allow companies to obtain greater profits in a “flexible” way.
Work flexibility: Understood as the modification or restructuring of the labor model, specifically responsible for changing the salary formation systems, the organization of work and the hierarchy of qualifications.[11] It provides facilities for companies to hire personnel (in exchange for the delivery of payrolls to subcontracting companies) and to fire them thanks to the "specialty" of the jobs in which they are hired, avoiding the generation of seniority, benefits, among other rights considered basic.
Outsourcing of Work: Although this concept is a very simple definition of what Outsourcing is, it is present within other work regimes in which even if there is a relationship between employer-worker, it is weakened and reduces existing legal responsibilities.
In this sense, it is of no less importance to highlight the Constitutional weakening of labor guarantees framed in the Political Constitution of Mexico and in the Federal Labor Law, summarized in the 2012 reforms with the promotion of Outsourcing as a work regime, accompanied by the Labor Reform of Enrique Peña Nieto together with the Pact for Mexico.
The president of Mexico Felipe Calderón proposed a labor counter-reform of 665 modifications to the Federal Labor Law, these were intended (according to the executive summary of the Reform) to update the legal system that "supposedly" did not correspond to the social, economic and demographic conditions of the country.[12].
The banners for these initiatives were to increase competitiveness and economic flexibility that had been slowed in the last years of government; “Flexibility in hiring is needed, but also flexibility in laying off workers, without it being so costly for companies,” said Agustín Carstens, governor of the Bank of Mexico.[13] Two of the three elements mentioned above.
Although Outsourcing already existed before the 2012 reform, the relationship that existed between intermediaries, employers and workers was clear: Both had legal responsibilities and were obliged to comply with article 15 of the LFT.
I. “The beneficiary company will be jointly responsible for the obligations contracted with the workers; and.
II. Workers employed in the execution of works or services will have the right to enjoy working conditions proportionate to those enjoyed by workers carrying out similar work in the beneficiary company. To determine the proportion, the differences that exist in the minimum wages that govern the geographical area of application in which the companies are located and other circumstances that may influence working conditions will be taken into consideration.”[9].
With the 2012 reform, the responsibility falls on the service company (outsourcer) and not on the company in which its services are provided (it acquires the figure of “jointly responsible”). With this, labor responsibility and legal mechanisms to report violations of workers' rights are diffuse. In the first instance, the outsourcer may not be registered as a legal or physical person and in the second, the figure of “Solidarity responsible” does not guarantee the social protection of the worker, because they are not responsible for many of the actions carried out since they do not comply with any of the fractions of the new article 15 of the new LFT.
- It cannot be general: the contractor cannot have workers in his charge who are exclusively dedicated to working for the benefit of contractors.
- The contractor may only resort to subcontracting when he needs to carry out an activity of a specialized nature. For example, a restaurant chain needs translators and its employees are cooks, waiters, etc. Therefore, you cannot resort to them. In this case, the restaurant chain could subcontract with a language institute.[14].
In addition to non-compliance with essential labor rights, they disrupt the cost of labor by giving it the figure of “specialized work”, this prevents people within this regime from not only lacking a living wage, but also prevents the generation of work seniority, benefits, insurance, etc. This thanks to the flexibility of mass layoffs in order to not grant these benefits.[15].
This profitability for companies caused an increase in subcontracted personnel; in 2009 the personnel in this scheme was 2,732,056, now it is 4,600,000, that is, almost double. The practice of outsourcing has increased an average of 5.5% each year since the Labor Reform came into force in 2012.[16].
Enrique Peña Nieto, through the reform, boasted in his last government messages "Without a doubt, this has been the six-year period of employment",[17] that supposed labor flexibility was only responsible for "building the Superexploitation of the Work Force with the updating of salaries, functions, categories, subcategories, social benefits, labor costs, unionization, collective labor contracts, flexibility and deregulation."[18].
Towards the reform of López Obrador..
The positions of both the Business Coordinating Council and the Employers' Confederation of Confederations of the Mexican Republic are quite similar to those issued by Monreal: Gómez Urrutia's proposal attacks the growth of (precarious) jobs and business competitiveness. However, Ricardo Monreal's actions are not limited only to stopping the aforementioned initiative, but he directly proposes an initiative born from the same business leadership in the February Open Parliament, with the main sponsor being Beyruti's company: GIN Group.
This proposal was analyzed within a “High Level Table” made up of the 8 parliamentary groups, as well as the business sector, supplanting the previous analysis carried out by the Labor and Social Welfare and Second Legislative Studies commissions.[19].
The GIN Group proposal proposed a complete legalization of outsourcing; criminal sanctions would not be included for those who practiced “illegal outsourcing,” giving full scope to subcontracting companies to squeeze millions of people at will, as had originally been proposed by business leaders.
Ricardo Monreal just a few months later, in June 2020, ensured the political and economic agreements that allowed the Fast-Track of the legislation for the T-MEC in Congress, the service that generates national capital by facilitating the extraction of surplus value and the country's natural resources points towards an even larger group within power, both precariousness agendas were unrelated.
López Obrador reform of 2021..
On November 12, 2020, President Andrés Manuel López Obrador sent the Congress of the Union a proposal to “eliminate Outsourcing” as a labor regime.
This reform proposed eradicating “subcontracting of personnel” and changing to “subcontracting of specialized services.”
Article 12.- Subcontracting of personnel is prohibited, understood as when a natural or legal person provides or makes available its own workers for the benefit of another.
Employment agencies or intermediaries involved in the personnel hiring process may participate in recruitment, selection, training and training, among others. These will not be considered employers since this character is held by those who benefit from the services.
Article 13.- The subcontracting of specialized services or the execution of specialized works that are not part of the corporate purpose or the predominant economic activity of the beneficiary of these is permitted, provided that the contractor is registered in the public registry referred to in article 15 of this Law. Complementary or shared services or works provided between companies of the same business group will also be considered specialized as long as they are not part of the corporate purpose or economic activity. preponderant of the company that receives them. Business group will be understood as established in article 2, section X of the Securities Market Law.
Likewise, the modification to article 14 establishes the necessary formalization of the object of services through a contract, unlike the reformed text that indicated minimum conditions for hiring workers from intermediaries.
To clarify these differences, article 15 of the LFT (modified in 1998) was radically modified to grant companies subcontracting specialized services obligations with the Ministry of Labor and Social Welfare.
Article 15.- Individuals or legal entities that provide subcontracting services must be registered with the Ministry of Labor and Social Welfare. To obtain registration, they must prove that they are up to date with their tax and social security obligations. The registration mentioned in this article must be renewed every three years. The Ministry of Labor and Social Welfare must rule on the registration request within twenty days after receiving it. If it does not do so, the applicants may require it to issue the corresponding resolution, within three days following the presentation of the request. Once this period has elapsed without notification of the resolution, the registration will be deemed to have been carried out for the legal purposes to which it gives rise. The Ministry of Labor and Social Welfare will deny or cancel at any time the registration of those natural or legal persons who do not comply with the requirements provided for by this Law..
Because the figure of “subcontracting of personnel” is eliminated and changes to “subcontracting of specialized services”, the provisions established in articles 15-A, 15-B, 15-C and 15-D were repealed,[20].
Other reforms on Outsourcing..
Although this article only talked about the Federal Labor Law and the reforms on Outsourcing, various laws had to be modified to coordinate basic conditions for workers, being the following: