On July 31, 2019, the Official Federal Gazette published the Protocol for the Legitimation of Existing Collective Bargaining Agreements (the "Protocol") that was anticipated by the eleventh transitory article of the Federal Labor Law Reform published May 31, 2019, which stated that Collective Bargaining Agreements had to be legitimized within four years of its publication.

The protocol establishes the following process for the legitimation of Collective Bargaining Agreements, which is completely independent from the procedures for salary and clause revisions filed before the Conciliation and Arbitration Boards:

1.- Until the Federal Labor Conciliation and Registration Centers begin operations, the union with ownership of the Collective Bargaining Agreement must give notice to the Labor Secretariat (STPS) of the consultation with the employees on their support for the existing Collective Bargaining Agreement. Such notice must be given through the following website: https://legitimacioncontratoscolectivos.stps.gob.mx.

2.- The notice must be filed at least 10 days prior to the actual consultation and it must contain information relative to the union, the company, the Collective Bargaining Agreement and the conditions under which the consultation will be carried out, including:

  • If executed through a Notary Public, the date and time in which it will take place, and the general information and email of the Notary Public.
  • Address where the consultation will take place. Such location should guarantee that the vote is secret, direct, peaceful, agile and safe.
  • If the consultation is to be assisted by an STPS official, the timing will be conditioned on the authority's schedule.

If the STPS detects any inconsistencies within the submitted information, it may request the Union to correct it. However, if the Union fails to do so and proceeds with the consultation, such will be deemed as not executed.

3.- Once the Union has given notice to the Employer about the announcement, the Employer must grant all facilities so that it may take place, as well as provide all employees with a copy of the current Collective Bargaining Agreement, at least three days in advance of the consultation. Failure to do so could trigger fines imposed by the STPS.

4.- All announcements, whether the consultation is to be executed with the assistance of a Notary Public or an STPS official, must be properly signed by the Union's General Secretary and posted at the workplace and at the Union's offices, at least ten days prior to the consultation.

5.- The Union that requests the consultation must print the announcement, the ballots and the voting minutes directly from the STPS' website. Such templates are the only ones authorized during the process. Any other will be considered invalid. The registry of voting employees will be made according to the list that contains their full names and CURP.

Such list will exclude white collar employees, and any others that were employed after the announcement has been filed. However, employees that were dismissed within 3 months prior to the consultation will be considered for voting. Employees who resign voluntarily will not take part in the consultation.

6.- Once the consultation has been executed, the Union will display the voting minute at the workplace and at the Union's offices. Similarly, it will give notice to the STPS through the website, attaching a copy of the voting minute, as well as the employees list and the public deed containing the facts description made by the Notary Public, if assisted by one.

If the STPS detects any breach of the process established by the Protocol or irregularities during the consultation, it may declare it invalid. However, the union may file for the consultation again.

7.- If the STPS does not make any observations within a period of 20 days after the voting minute has been filed, the Collective Bargaining Agreement will be considered as legitimized, and therefore, the Union will be able to request from the authority the corresponding certificate.

However, if the employees do not support the Collective Bargaining Agreement, it will be cancelled and all of the employment conditions contained therein that are superior to those mandated by Federal Labor Law will prevail.

8.- Unions that, for the number of employees or their distribution of workplaces, cannot undergo the consultation process, must suggest alternatives to the STPS, according the provisions of the Protocol and to the principles of freedom and secrecy of vote.

For ease, below we share a flowchart that describes the process:

The above does not impose any obligations on the employer other than facilitating the consultation. This means that the whole process will be filed and carried out by the Union. Nonetheless, it is important to establish a joint strategy with the Union that owns the Collective Bargaining Agreement in order to guarantee that, at the moment of consultation, the majority of employees support the document. If the strategy is executed correctly, it could minimize the risk of cancellation of the Collective Bargaining Agreement.

Originally published August 02, 2019

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.