On December 5 2018, Second Chamber of the Supreme Court of Justice (SCJN) determined that it is unconstitutional that the employers are not obliged to register domestic female employees in the Mexican Institute of Social Security (IMSS) when resolving the Amparo Proceeding D.T. 9/2018.
According to the SCJN, there is no constitutional valid reason to exclude domestic workers from the Federal Labour Law (FLL) or from the Social Security Law (SSL), which prompts an unjust discrimination against them, especially against women since the domestic work is done mainly by them (according to the National Institute for Statistics and Geography or INEGI, 9 of every 10 domestic employees are women).
Traditionally, domestic work has been exposed to inadequate work conditions, such as long work journeys and low salaries, which have situated it far away from the concept of decent work, which the International Labor Organization (ILO) has defined as work that dignifies and enables the development of own capabilities.
Currently, domestic workers may be subjects of insurance in the voluntary scheme of IMSS.
This resolution of the SCJN seeks to give real access to domestic workers to social security benefits that allow them to be protected against circumstances and unforeseen events affecting their means of subsistence and income, as well as generate a life project under equal conditions
Finally, the SCJN instructed the IMSS to design and implement a ‘pilot program’’ for domestic workers, which at the same time must provide all necessary administrative facilitations to help employers meet their obligations in a simple and easy way and in a prudent period (first half of 2019).
The Social Security scheme proposed by IMSS must:
- Consider the special conditions of domestic work (e. g. having more than one employer, in most cases the labor relationship is not in a written agreement, etc.).
- Be of easy implementation for employers (most of them are housewives or fathers).
- Not be voluntary but mandatory.
- Explore the possibility to ease the registration in the new regime releasing the employers from the obligation to be registered before the Tax Administration Service (SAT).
The intention of the guidelines issued by the SCJN is that, within 18 months from the implementation of said pilot program, the IMSS is in possibility to present to the Congress the legal adequate necessary to cover the formal incorporation of the new social security for domestic workers and, in a term no longer than 3 years, social security for all of them is robust, sufficient and effective in the country.
Regardless that Covenant 189 of the ILO about domestic workers has not been ratified by Mexico yet, on December 9, 2019, Deputy Silvia Lorena Villavicencio Ayala from MORENA sent a bill to amend several provisions of the FLL; in terms of the bill article 146 of the FLL, which releases employers from the obligation to contribute to the National Housing Fund 5% of the workers’ wage with respect to domestic employees is repealed; Subsection IV of article 127 of the FLL is also repealed to give domestic workers the right to profit sharing; a last paragraph is added to article 133 of the FLL which limits the duration of the work journey to the maximums provided by article 61 of the same ordinance (eight hours day journey, seven hours night journey and seven hours and a half mixed journey) which if exceeded will generate overtime payment.