On August 26th, 2021, the Ministry of Labor and Social Welfare (MLSW) issued a document denominated “Guide for complying with the obligations regarding the registry upon the Register of Contractors of Specialized Services or Specialized Works for individuals or legal entities that provide specialized services or carry out specialized works within the framework of the amendments in labor subcontracting matters” (Guide), which establishes, among others, a Section with several “aspects to consider ”in connection to what is understood by providing or making own workers available in benefit of a third party. The Guide may be accessed in the following website https://repse.stps.gob.mx.
Comments
In the referred Section the following “aspects to consider” are highlighted:
a) It is understood that own workers are provided or made available for the benefit of a contracting party, when one or more workers carry out specialized services in a working space or workplace different than the one with whom they have a working relationship (g. owned by the contracting party or under his management or responsibility).
b) In cases in which the contractor’s workers carry out work at the contracting party’s facilities, it will be considered that it is provided or made available personnel, when those workers perform their work at the contracting party’s facilities permanently, indefinitely, or periodically.
c) Will be indications that workers of the contractor are provided or made available, those tasks that are carried out in the facilities, establishment, or workplace of a company by personnel who are not workers of such of the same.
d) Individuals or legal entities that provide personnel in terms of an agreement related to advertising, marketing and dissemination of products or brands, must have to specify their activities in the agreement subject or purpose without being able to carry out activities that concern to the contracting party.
In the cases indicated in the aforementioned subparagraphs, the contractor must registry in the Register of Contractors of Specialized Services or Specialized Works (Register) before the MLSW.
e) Those individuals or legal entities through them carry out promotional or advertising activities of a brand of their own, and its personnel are provided or made available in a workplace other than their own, must also registry in the Register before the MLSW.
It should be noted that the Guide denotes a total absence of legal grounds, in addition that such document it is not issued by an MLSW official who has sufficient powers for this purpose, so we estimate that such Guide has no legal force, but rather be a merely informative document and that it is not binding.
On the other hand, we consider that the Guide shows a lack of legal reasoning and technique, because the simple fact that the contractor’s personnel carry out specialized services in a working space or workplace, facilities, or establishments of the contracting party, would not necessarily imply that the contractor provides or makes his own workers available for the benefit of the latter.
Recommendations
We suggest reviewing and analyze the contracting schemes for the provision of services implemented in order to determine how to continue operating said schemes or carry out the necessary modifications or restructures, due to the potential contingencies that may be produced, and if applicable, the contractors must apply for registration in the foregoing Register.
If you have any questions regarding the foregoing, please do not hesitate to contact us.
Mexico City, August 30, 2021
