September 09, 2019 Issue: September 2019

MEXICO - Protocol to Legitimate Existing Collective Bargaining Agreements in Mexico

By: Francisco Udave Treviño

On July 31, 2019, the Decree issuing the Protocol to legitimize existing collective bargaining agreements was published in the Official Gazette of the Federation. This was in compliance with Transitory Article Eleven, fifth paragraph of the Decree to amend, add, and repeal various provisions of the Federal Labor Law and other regulations in connection with Labor Justice, Freedom of Association and Collective Bargaining, published on May 1, 2019, and the international commitments assumed by Mexico in the negotiation of the USMCA.

The rules and procedures described in this Decree will be applied by the Ministry of Labor and Social Welfare (“STPS” for its acronym in Spanish) once the Federal Center for Conciliation and Labor Registration (“FCCLR”) becomes operational. Such provisions are intended to provide certainty regarding the legitimacy of existing Collective Bargaining Agreements (“CBAs”), therefore they are independent of those applicable to the submission and revision of CBAs.

The foregoing shall be performed through the workers’ vote (inquiries), certified by a notary public or STPS officials (subject to availability), at the union’s choice. Such vote shall be carried out as follows:

1. The Union entitled to negotiate the CBA shall electronically inform the STPS of the inquiry, through this website, at least 10 business days prior to the date scheduled for its execution. Such notice shall contain the following data and documents:

  • a. Union: Name, registry number, legal address, contact data, e-mail to receive notifications, name and official ID of the Union’s General Secretary or representative (along with a copy of the corresponding document to evidence her/his powers or legal capacity) and the valid certificate of existence (“Toma de Nota”).
  • b. Employer: Name or corporate name, economic branch or main activity, domicile, Federal Taxpayers Registry Code, e-mail and phone number.
  • c. CBA: Authority before which the CBA was filed, file number, number of affiliated workers subject to the CBA, «List of workers with the right to vote» in an Excel or .CSV format (which shall contain the workers’ full name and Unique Population Registry Code (CURP for its acronym in Spanish), including members of the representative union and those who have been dismissed within the three months prior to the notice, but excluding: 1) workers of trust, 2) those who started to render their services after the date on which the notice was filed, and 3) those who have terminated their employment relationship), as well as a description of the main benefits and wage scales.
  • d. Vote: If the Union chooses to carry out the procedure with the assistance of a notary public, the date, time and domicile at which the vote will take place must be included in the notice, informing the notary public’s name, patent number and contact details. If the Union chooses to carry out the procedure with the assistance of STPS officials, the notice shall request the STPS’s confirmation on the availability for the date, time and tentative address.

2. If the STPS detects inconsistencies (through its capacity to request information from the employer and other authorities), it will request corrections; otherwise the vote may be set aside. The Union may reschedule the date and time of the vote for this purpose.

If the requirements are met and the Union chooses to perform the vote with the assistance of a notary public, it must print (a) the electronic templates of “call” (which must be published at the workplace at least 10 business days before the scheduled date and must be signed by the General Secretary or person authorized in the Union’s bylaws), (b) ballots (not personalized) which must be numbered and sealed, and (c) voting minutes.

If the Union chooses to execute the process through the STPS, the latter shall confirm availability and the name of the public officer in charge of the procedure, and subsequently the Union shall issue the call and other documentation.

In any case, the Union must notify the employer for the latter to deliver a copy of the CBA to the workers at least 3 business days before the consultation; otherwise the employer may be subject to fines and to pay the printing and delivery costs incurred by the Union, which shall alert the authorities about this fact.

3. The vote must be carried out in free, peaceful, agile, and secure conditions, through the workers’ personal, free, direct, and secret vote (with prior identification of their registration in the List of Voters), which shall be reflected in the ballots that will be delivered to them at the moment and which shall be stored in ballot boxes, whose scrutiny and computation must comply with the security, transparency, reliability, and certainty principles.

4. The Union shall post the voting minutes in visible and accessible places at the workplace and at the union premises, and give electronic notice to the STPS of the result of the vote within 3 days for the latter to publish such results on the Internet; otherwise the CBA may not be considered legitimate.

The Union shall also provide: a) The voting minutes (as well as the public document issued by the notary public, if applicable), which shall contain: place, date and time of the vote result, including the breakdown of the votes and a statement under penalty of perjury regarding the Union’s commitment to keep the original minutes and ballots for a period of up to 5 years; and, b) the List of Voters.

5. The STPS shall analyze the information and may: (a) make observations (if none are issued within the following 20 business days, the CBA shall be deemed legitimate and the Union may request the certificate of legitimacy); (b)) deem the consultation null and void if it did not comply with the previously described requirements; or, (c) issue the certificate of legitimacy, which shall be included in the Registry established by the STPS for such purpose and, when applicable, in the Registry established by the FCCLR.

If a CBA does not have the majority support of the workers or if an existing CBA is not validated before May 1, 2023, such CBA shall be administratively terminated, without affecting the workers’ benefits and conditions agreed upon therein.

Unions that cannot complete their registration due to the large number of workers that must be consulted, that need to carry out the consultation in two or more states, or during two or more shifts, must express such situation and propose the procedures and rules to carry out the consultation in accordance with this Protocol to the e-mail reforma.laboral@stps.gob.mx, for its authorization by the labor authority. Such proposal shall guarantee the security, transparency, reliability, certainty, quality, and integrity principles of the consultation procedure, as well as the freedom and secrecy of the vote.

The Decree will come into force on August 1, 2019. The Protocol will come into force until the FCCLR begins its registry and verification functions. The official publication in Spanish can be accessed directly at this link.

Francisco Udave Treviño

Santamarina + Steta, Mexico City, Mexico