Background

On December 1 2012 a substantial amendment to the Federal Labour Law became binding. The foregoing reform included several important modifications to the regulation of employment relationships in Mexico.

The amendment to the Federal Labour Law introduced Article 56bis, which in general terms provides as follows:

  • Workers may execute activities that are complementary or related to their main duties.
  • Workers may receive a corresponding contribution for such complementary or related activities.
  • 'Complementary or related activities' are defined as activities that are permanently and directly related to those agreed in individual employment agreements and collective bargaining agreements or, in any case, activities carried out on a regular basis.

This provision was almost immediately challenged by numerous unions and individuals by means of amparo trials (ie, constitutional appeals) filed before the federal courts, which claimed that it was unconstitutional and violated the principle of employment security and workers' constitutional right to receive a salary. These claims were mainly based on the following arguments:

  • The wording of the provision implied that employers had the option to force workers to execute activities different from those for which they were hired.
  • The article expressly stated that workers "may" be compensated for complementary or related activities, which gave employers the option to refuse to pay such compensation, thus making it a provision which lacks imperativeness.

Supreme Court decision

On February 12 2014 the Second Chamber of the Supreme Court of Justice issued a final resolution (published in the Weekly Judicial Gazette on June 6 2014) which confirmed that Article 56bis was not unconstitutional; nor did it violate the principle of employment security or workers' constitutional right to receive a salary. The court based its conclusions on the following grounds:

  • Based on a grammatical interpretation of the provision and the motives expressed by the executive branch when sending the initial bill to Congress, it was clear that the legislature had intended to limit the execution of complementary or related activities to activities that were permanently and directly related to the duties contemplated in employment agreements (both individual and collective), or to activities carried out on a regular basis. Thus, the provision could not be considered permissive, since it does not allow employers to dispose of workers arbitrarily.
  • Executing complementary or related activities is optional for workers.
  • The provision does not give employers the option to pay their workers a salary corresponding to the complementary activities that they chose to execute, simply because of workers' constitutional right to receive a salary in compensation for their work. Thus, the inclusion of the word "may" in the provision could not be construed as an option for employers to compensate workers for such activities; rather, the employer was obliged to do so.

The Supreme Court's final resolution produced jurisprudence – Court Precedent 2a/J 49/2014 (10a), titled "Complementary or Related Works. Article 56bis of the Federal Labour Law does not violate employment security or the right to receive a salary (current legislation in force from December 1 2012)".

Comment

Although the Supreme Court ruled that Article 56bis was not unconstitutional and did not violate employment security or workers' constitutional right to receive a salary, the interpretation of the final resolution raises the following issues:

  • It has been confirmed that the execution of complementary or related activities is completely optional for workers. Thus, they have a legal right to refuse to carry out these activities. In this regard, Article 56bis does not distinguish between salaried and hourly employees and therefore applies to both, irrespective of any hierarchies in place.
  • The resolution can be construed to the effect that the compensation to which workers are entitled for complementary or related activities which they freely choose to perform should be in addition to their existing salary.

Consequently, employers are advised to include the following provisions in all employment agreements in order to reduce their exposure:

  • a specific acknowledgement by the worker that by signing the agreement, he or she expressly commits to carry out any activity that is complementary or related to his or her main duties as may be required;
  • an acknowledgement by the worker that all complementary or related activities that he or she may perform in the course of his or her work will be deemed as compensated by means of the agreed salary; and
  • a general description of all complementary, related or additional activities that the employer may require from the worker during the course of the employment relationship.

This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.