The protocol established by Mexico's Secretariat of Labor and Social Welfare (STPS) to execute the legitimacy of the collective labor agreements was published on July 31, 2019, in the Official Gazette of the Federation, in accordance with the fifth paragraph of the Eleventh Provision Article, of the Decree-Law by means of which various provisions are amended, supplemented and rescinded in the Mexican Federal Labor Law (Ley Federal del Trabajo), Organic Law of the Federal Executive Branch (Ley Orgánica del Poder Judicial de la Federación), Federal Law of the Public Defender's Office (Ley Federal de la Defensoría Pública) National Workers Housing Fund Institute (Ley del Instituto del Fondo Nacional de la Vivienda para los Trabajadores) and Social Security Law (Ley del Seguro Social), in matters related to labor justice, freedom of association and collective bargaining, published in the Official Gazette on May 1, 2019.
The protocol was enforced on Aug. 1, 2019, and its purpose is the legitimization of collective labor agreements filed before the Conciliation and Arbitration boards. The protocol will bequeath democratic rules so that over the course of the next four years said agreements and provisions are validated, legitimized and approved by the majority of workers covered by said agreements, through personal, free, direct and secret voting, which requires a procedure to deliver written or electronic notice of said consultation to the authority.
This Holland & Knight alert provides a general summary of the procedure established by the STPS.
1. The incumbent trade union of the collective agreement will deliver notice to the STPS, indicating that it will consult the workers to determine if the majority endorses the collective labor agreement that the trade union has agreed to and entered.
2. The notice will be issued electronically through the website.
3. The notice must be issued at least 10 business days in advance of the date on which the consultation will be performed, and must contain the following information:
Of the Trade Union
- name, registration number, legal address and contact details of the trade union, including email to receive notifications
- full name of the general secretary or, if applicable, the legal representative of the trade union
- official identification of the general secretary or legal representative of the trade union
Of the Company
- full name, trade name or registered company name; address; federal taxpayer registry number; economic activity or main line of business; email and telephone of the employer with which the collective labor agreement to be legitimized was executed
Of the Collective Labor Agreement
- labor authority and agreement number assigned by the authority
- the number of workers affiliated with the collective agreement
- employee list with voting rights, including full name and Registration and Personal Identification Code (CURP) of each individual worker
- main benefits, including vacations, vacation premium, Christmas bonus, and salary tabulator
Of the Consultation
- date and time in which the consultation will take place.
Verified by a notary public: must contain the full name, patent number or similar document, as well as contact information and email of the notary public. The labor authority may verify compliance with the requirements established in this Protocol.
Verified by a labor authority: the trade union will indicate such in its registry, in which case the labor authority's support will be subject to the personnel availability, and must confirm the availability of the public officer in charge of said diligence, the public officer will record and officially acknowledge that the consultation process was verified, and as the case may be, that the requirements established in this Protocol were fulfilled.
In both cases, the call must be signed by the general secretary or, in his or her absence, by the person empowered to do so in accordance with the instrument's bylaws, and will be posted in visible and accessible places located throughout the workplace and the trade union premises.
- indicating the address where the consultation will take place, which must be accessible to employees and meet the necessary conditions so they may cast their vote in a personal, free, secret, direct, peaceful, agile and secure manner, without being coerced in any way whatsoever
In the event that the STPS detects inconsistencies in the registry information submitted by the trade union, the STPS will ask the trade union to rectify the information. In not doing so, and proceeding with the consultation, the STPS will deem this consultation void.
The STPS may at any time request from the company or the relevant authorities or agencies any information necessary in order to verify that the data established in the employee list with voting rights is complete and truthful.
4. Once the trade union issues the call, it must inform the employer immediately so that the consultation is carried out on the date, time and place indicated therein.
The employer must:
a. grant the facilities necessary for the consultation
b. give their employees a printed copy of the collective labor agreement
In the event that the employer does not comply with this obligation, the trade union may deliver said agreement directly to its affiliates, at the employer's cost, and inform the labor authority of such default, so that the corresponding fines are imposed.
5. The trade union must print the call, ballots and voting minutes that are issued through the electronic platform established by the STPS for this purpose. These formats will be the only ones authorized for the consultation procedure. Any documentation that has not been issued through the platform will be deemed invalid.
The employee list with voting rights will include employees affiliated in the incumbent trade union concerned with the collective labor agreement subject to legitimation, excluding those that they trust or those who issue their vote after the date in which the notice was submitted. Employees laid off during the three months prior to the notice delivery will be part of this list, with the exception of employees who have terminated their employment relationship.
Relevant Procedural Considerations
- The employer may not intervene in any stage or moment of the consultation procedure.
- Once the consultation has been carried out, the trade union shall post the voting minutes in visible and accessible places located throughout the workplace and the trade union premises. Likewise, the trade union will deliver notice to the STPS through the electronic platform. If not done, the agreement will not be considered legitimate.
- Once the consultation has been carried out, the trade union shall post the voting minutes in visible and accessible places located throughout the workplace and the trade union premises.
- In the event the verification of constancy finds substantive irregularities and/or if there are inconsistencies in relation to substantive process facts, the STPS will state the procedure as void.
- In the case that the STPS does not make any further observations 20 business days following the date on which the trade union submits the notice result, the collective labor agreement will be deemed legitimate and the corresponding proof of legitimacy will be delivered to the trade union.
- If the collective labor agreement does not have the majority support of the employees, said instrument will be terminated. The benefits and working conditions superior to those established by law in said collective labor agreement shall remain in force, and the application of said benefits and working conditions will remain compulsory for the employer.
- Collective labor agreements that are not legitimized before May 1, 2023, in accordance with the protocol, will be terminated, and all benefits and working conditions agreed therein superior to those established by law shall prevail.
- Trade unions that cannot complete their registration due to a high amount of employees that require consultation, or that require consultation in two or more federal entities, or during two or more days, must report said issue to email@example.com. In addition, the trade union should propose procedures and rules in order to carry out the consultation pursuant to this Protocol.
- The legitimization procedure for collective labor agreements is independent of the salary review procedures and integral to said agreements before the Conciliation and Arbitration boards.