On July 31, 2019, Mexico's Ministry of Labor and Social Welfare or Secretaría del Trabajo y Previsión Social (STPS) published in the Official Gazette of the Federation (Diario Oficial de la Federación) (DOF) the protocol to legitimize currently existing collective bargaining agreements (CBAs). This protocol will be valid from now until the Federal Center for Conciliation and Labor Registration begins its operations. The protocol was issued in compliance with Mexico's labor law reform, which was enacted on May 1, 2019.
Important Considerations for the Protocol
The protocol specifies guidelines for the filing of currently existing CBAs, their recognition, legitimization, and finally, their transfer to the labor registry center once it opens for operations (which is expected to be on May 1, 2021). The new guidelines provide for:
- acknowledgement of the existing CBA by the employees; and
- a voting process for the acceptance/rejection of the (existing or newly renegotiated) CBAs.
Steps to Take Prior to the Vote
According to the protocol, the union is required to file a digital notification to the STPS, enabling the union to decide whether to require assistance from the Labor Authority or use a notary public. (If the union chooses to use the Labor Authority, it will be subject to the Labor Authority's availability to conduct the vote.)
The union must provide the following information in its petition:
- Information on the union: general information about the union, including domicile, the name of the union's general secretary, and a copy of his or her identification card, as well as the Toma de Nota (the union's articles of incorporation and representation documents of the union's directive);
- Information on the employer: the employer's tax identification number, industry, email address, and telephone number;
- Information from the CBA: the labor authority and file number, the number of employees under the protection of the CBA, and a list of employees with voting rights (in XLS or CSV file formats, the name and Clave Única de Registro de Población or Unique Code of Population Registry (which is a federal identification number), main benefits, such as vacation, vacation premium pay, and Christmas bonus and wage scale); and
- Information on the notary public: if considering utilizing a notary public, the notary's complete name, notary identification number, email, and contact information.
Once the petition is electronically filed, the union will inform the employer regarding the specifics of the date upon which the voting process will take place. It is important for employers to take into account that a copy of the CBA must be delivered to the employees three days prior to the vote date.
Under the new protocol, the union must print, enumerate, and seal as many ballots as required, generated through the STPS's digital platform. These are the only documents valid for the voting procedure. The voting process must be held in an accessible place, be by secret ballots, and be peaceful, free, and efficient on the date and hour indicated. The union must guarantee the security, transparency, reliability and certainty of the ballot boxes and the vote count. Employees will be required to provide their official identification cards in order to vote.
Employers may not participate during the voting procedure itself, but unions will need to consult with the employer to facilitate the vote and ensure that they meet the above requirements.
After the Vote . . .
Under the new protocol, the union must place the voting result certificates in visible and accessible places at the workplace and at the union's offices at employer's facility. It must report the results of the vote via the STPS's digital platform, including the voting act/certificate, the employee list, and the notarized deeds when applicable within three days from the date of the vote. If the union does not comply with these requirements, the CBA will not be legitimate.
If the STPS does not make any observations during the 20 business days following the date the union sends the results, the CBA will be considered legitimate, and the corresponding legitimization certificate can be requested from the STPS.
If the result of the vote is that the union does not have the majority support from the covered employees, the CBA will be deemed terminated. This is unlike U.S. labor laws, which require only a majority of votes from eligible employees who actually vote.
If unions do not legitimize their CBAs according to this protocol before May 1, 2023, the CBAs will be terminated.
The Mexico City office of Ogletree Deakins will continue to monitor and report on developments in the labor and employment laws of Mexico on the Cross-Border blog.
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.