Articles

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 constitutionally 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

(September. 2018) The Senate ratified Mexico’s adhesion to Convention 98 of the International Labour Organization (ILO) on the right of freedom of association and free collective bargaining. This Convention that is a treaty, will become part of the Mexican legal system due to its binding effects.

From Articles 1, 2, 3 and 4 of the Convention, which are the most relevant, we may highlight:

• Workers must be absolutely free to join or not to join a union, or quit being affiliated to it, as their job should not be subject to the condition of being affiliated to a union.
• Therefore, unions will face the challenge of reinventing themselves to convince workers of the free decision to join them.
• Unions must be free of any interference from employers in their activities, including payment of union dues.
• Employers shall not organize workers’ unions.
• Union sponsorship by employers is considered as interference; unions should only be supported by dues from their affiliates.
• Work conditions must result from collective bargaining agreements.
• It must be highlighted that this Convention is an international treaty thus, its provisions are binding for the ratifying parties and, according to our Constitution, international treaties are part of our legal system.
• Finally, due to the ratification of this Convention, the Mexican Labour Law should be modified to eliminate Article 395, which currently rules the Closed Shop Clause upon Admission and a modernization of the current procedure to strike should be undertaken.

(October. 2018) The US Trade Representative, Robert Lighthizer, and Canada’s Foreign Affairs Minister Chrystia Freeland, announced having reached a trade agreement together with Mexico, as part of the renegotiation of what was previously known as the North American Free Trade Agreement (NAFTA).

As expected, the trade agreement will include a labour chapter, in terms of which violations to its provisions could have more severe consequences.

Although the definitive and official text of the labour chapter is not yet known, Mexico’s Ministry of Economy, through a statement, informed that its purpose is to “Reaffirm the commitments assumed by the Parties within the framework of the 1998 Declaration of the International Labour Organization regarding Fundamental Principles and Rights at Work, guaranteeing the effective implementation of fundamental labour rights in the legislation of each Party, and promote transparency in the application of labour legislation”. A statement of shared commitments is also made in relation to the International Labour Organization Declaration on Rights at Work and on Social Justice.

In the USMCA, acronym in English of the new commercial agreement, the content included in the TPP is reproduced, which is in accordance with the constitutional changes that Mexico has carried out. However, the modification of the secondary legislation is pending, which does not have a specific date for its discussion; however, on September 20th, 2018, the Mexican Senate ratified Convention 98 of the International Labour Organization regarding freedom of association and collective bargaining, which is in accordance with the contents of the Chapter included in both the TPP and the USMCA.

Under the new labour obligations accepted in the TPP and in the USMCA, it is necessary for Mexican companies to carry out an analysis of their union strategy, especially those companies that have a “non-active” or protective collective bargaining agreement, due that the new legal framework, once ratified by the Mexican Senate, will imply the immediate fulfilment (“compliance”) of diverse obligations that will have the rank of constitutional disposition.