Due to the new provisions on labor subcontracting published on April 23rd, 2021 in the Official Gazette of the Federation (OGF), on May 6th, was published in the website of the Federal Commission of Regulatory Improvement the preliminary draft containing the “Agreement by which the General Provisions for the registration of individuals or legal entities that provide specialized services or carry out specialized works referred to in article 15 of the Federal Labor Law are disclosed” (Agreement). Said preliminary draft is pending for publication in the OGF.
Comments
We highlight that the Agreement states that it should be understood by “specialized services or works”, being those that gather elements or distinctive factors of the activity carried out by the contractor, which are supported, among others, by training, certifications, permits or licenses that regulate the activity, equipment, technology, assets, machinery, risk level, average wage range and experience, which provide added value to the beneficiary or contracting party.
On the other hand, the Agreement establishes the information that the contractors must provide to the Ministry of Labor and Social Welfare (MLSW) through the corresponding IT Platform to obtain the registration in the Register of Contractors of Specialized Services or Specialized Works (Register). Such information is, among other: (i) the current electronic signature; (ii) several identification data of the contractor; (iii) the geolocation; (iv) the corporate purpose, which must include specialized services or works; (v) the total number of employees at the moment of applicating for the registration; (vi) the specialized economic activity in accordance with the catalog of activities depending on the work risks of the Mexican Social Security Institute; and (vii) the predominant economic activity.
Likewise, the procedure for obtaining the registration in the Register consists in that once the respective information has been provided, the IT Platform will assign a folio number and the MLSW will have a period of 20 business-day-term after receiving the information to resolve the application. In the event that the MLSW does not resolve within the aforementioned term, the contractor may require it to issue the registration notice within 3 business-day-term following said request and, if it does not do so, the registration will be deemed made for all legal purposes; that is, an “implied affirmation” (afirmativa ficta) would be configured.
Finally, the Agreement states various assumptions both for the refusal of registration in the Register, as well as for its cancellation. Regarding the aforementioned refusal of registration there are the following assumptions, among others: (i) not proving the specialized nature; (ii) not being up-to-date with tax, social security, and housing fund obligations; and (iii) provide false information or apocryphal documents. Regarding the cancellation of the registration, there are the following assumptions, among others: (i) provide specialized services or works that are not registered in the Register; (ii) provide services that are part of the corporate purpose or predominant economic activity of the beneficiary; and (iii) there are definitive assessments derived from non-compliance with tax, social security, and housing fund obligations. In both cases, the contractor will have a period of 5 business-day-term to express what is appropriate for him.
The Agreement denotes certain deficiencies that will cause legal uncertainty to the contractors, such is the case of the configuration of an “implied affirmation” (afirmativa ficta), since we estimate that in practice it will generate problems between the contractors and the beneficiaries, especially in cases of tax issues or well, the refusal of registration in the Register because the assessments that are sub judice in a strictly speaking does not imply a breach of tax, social security and housing fund obligations, among other cases.
Recommendations
Although the aforementioned Agreement is a preliminary draft of the general provisions that will set forth the procedure for the registration of contractors of or specialized services or works before the Register, we consider that it will not undergo relevant amendments, so it is indispensable that the contractors perform the pertinent actions, review 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 and, if applicable, prepare the information for applicating for the registration in the foregoing Register.
If you have any questions regarding the foregoing, please do not hesitate to contact us.
Mexico City, May 11, 2021
