Comparison of Mexico’s Federal Labour Law, International Labour

Organization (ILO) standards, and FLA Code and Benchmarks

Mexico Committee of the Americas Group, January 2015

Contents
1. Labour Outsourcing ............................................................................................. 1 4. Firings and reinstatement ................................................................................... 18
Definition ......................................................................................................... 1 5. Women’s rights and gender and other forms of discrimination .......................... 21
Limits on the use of outsourcing ..................................................................... 1 Parental leave ............................................................................................... 21
Liability for wages and social security obligations of outsourced workers ..... 4 Nursing breaks .............................................................................................. 21
2. Temporary, probationary and seasonal work ...................................................... 6 Harassment ................................................................................................... 22
Short-term contracts [specified period vs continuous].................................... 6 Discrimination ................................................................................................ 23
Probationary periods ...................................................................................... 7 Pregnancy testing ......................................................................................... 24
Training periods .............................................................................................. 8 6. Wages and profit sharing ................................................................................... 25
Fixed, discontinuous or seasonal contracts ................................................... 9 Direct deposit ................................................................................................ 25
Work by the hour .......................................................................................... 11 Pay by the hour ............................................................................................. 25
Seniority ........................................................................................................ 12 Profit sharing ................................................................................................. 26
3. Freedom of Association ..................................................................................... 14 Endnotes ................................................................................................................. 27
Union certification ......................................................................................... 14
Exclusion clauses ......................................................................................... 15
Transparency ................................................................................................ 16
Election of union representatives ................................................................. 17

The Mexico Committee of the Americas Group is a multi-stakeholder forum made up of several international apparel brands, labour rights NGOs and the global union IndustriALL that promotes responsible sourcing in the Mexican
garment and footwear sectors. The Maquila Solidarity Network coordinated preparation of this document, in collaboration with a small working group of the Committee which included representatives from brand members and the Fair
Labor Association (FLA). It is available at: http://www.maquilasolidarity.org/en/comparing-mexican-labour-law-ilo-standards-and-fla-code-and-benchmarks.
 Comparison of Mexico’s Federal Labour Law, International Labour
Organization (ILO) standards, and FLA Code and Benchmarks
Mexico Committee of the Americas Group, January 2015

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Issue Mexican labour law (2012) International Labour Organization (ILO) FLA Code & Benchmarks Notes
standards

1. Labour Outsourcing
Definition Under Article 15-A of the revised There is no official international definition. In The Fair Labor Association (FLA) defines a
Federal Labour Law, 2007, the ILO produced a report on the definition “contract worker” as “labor supplied by a third-party
subcontracting” (outsourcing) is included in the national labour laws of 13 employment agency.” See Glossary of Terms, FLA
3
defined as a contract in which an countries. Code and Benchmarks, p.39.
employer (called “contractor”)
performs work or renders services
through employees under its
control in favour of another entity
or person who benefits from the
contracted services; determines
the activities to be performed by
such employees; and supervises
the carrying out of such services or
contracted work.
Limits on Article 15-A sets the following The ILO has not set out extensive rules The FLA Code and Benchmarks stipulate that Distinguishing between legitimate
the use of limits on the use of outsourcing: regarding the use of outsourcing agencies. employers can hire “contract workers” only if such contracting for a product or service
outsourcing This type of work must comply with hiring is consistent with the national law of the that is not part of the company’s
the following conditions: ILO Recommendation No. 198 (Employment country of production and one of the following core work and illegitimate
4
a) It cannot cover the totality of Relationship) states that “national policy conditions is met: contracting to avoid employer
the activities, whether equal should at least include measures to combat  The permanent workforce of the enterprise is responsibilities is at the heart of
or similar in totality, disguised employment relationships in the not sufficient to meet unexpected or unusually the issue for this section. The ILO
undertaken at the workplace. context of, for example, other relationships that large volume of orders (ER.8.1); Recommendations and Mexican
b) It must be justified due to its may include the use of other forms of  Exceptional circumstances may result in great law both look to the facts to
specialized character. contractual arrangements that hide the true legal financial loss to the supplier if delivery of goods determine which is the true
c) It cannot include tasks equal status, noting that a disguised employment cannot be met on time (ER.8.2); or employer.

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Issue Mexican labour law (2012) International Labour Organization (ILO) FLA Code & Benchmarks Notes
standards
or similar to the ones carried relationship occurs when the employer treats an  Work that needs to be done and is outside the
out by the customer’s individual as other than an employee in a professional expertise of the permanent In this instance, Mexican law
workers. manner that hides his or her true legal status as workforce (ER.8.3). appears to be clearer than either
an employee, and that situations can arise the FLA Code and Benchmarks or
If it does not comply with all of where contractual arrangements have the effect In addition, employers shall not: the ILO Recommendation, in that it
these conditions, the customer will of depriving workers of the protection they are  use contract/contingent/temporary workers on a says that outsourcing cannot be
be deemed to be the employer for due.” regular basis for the long-term or multiple short- done for tasks which are “similar to
all effects and purposes under the terms (ER.9.1); or the ones carried out by the
Law, including as it applies to It further states: “For the purposes of the  hire contract/contingent/temporary workers as a customer’s workers.”
obligations related to social national policy of protection for workers in an means to support normal business needs on a
security. employment relationship, the determination of continuous basis or as regular employment The FLA Benchmarks set other
the existence of such a relationship should be practice (ER.9.2). limits on the use of outsourced
Under Article 15-D, the company guided primarily by the facts relating to the workers but stipulates that the use
can’t transfer its workers to an performance of work and the remuneration of of outsourcing first has to be
outsourcing company (or the worker, notwithstanding how the relationship consistent with national law.
“contractor”) “for the purpose of is characterized in any contrary arrangement,
undermining any right under the contractual or otherwise, that may have been Even if the Mexican law is not
labour law.” agreed between the parties.” enforced or interpreted in this way,
the FLA Benchmarks also make
In cases in which Article 15-D is Recommendation 198 suggests that members clear that contract workers are not
violated, a fine will be issued as “consider the possibility of defining in their laws to be used to support normal
established by Article 1004-C, of and regulations …specific indicators of the business needs on a continuous
between 250 and 5,000 days existence of an employment relationship … basis or as a regular employment
remuneration at the basic minimum which might include: : practice.
wage. (a) the fact that the work: is carried out
according to the instructions and under the In practice this should mean that
control of another party; involves the integration an employer that outsources core
of the worker in the organization of the parts of its workforce will be in
enterprise; is performed solely or mainly for the violation of brand codes, since the
benefit of another person; must be carried out vast majority of such codes require
personally by the worker; is carried out within compliance with national labour
specific working hours or at a workplace laws, and that brands must
specified or agreed by the party requesting the evaluate a supplier’s employment
work; is of a particular duration and has a certain practices to determine the true
continuity; requires the worker's availability; or nature of the supplier’s
involves the provision of tools, materials and employment relationships. Once
machinery by the party requesting the work; that analysis has been concluded,

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Issue Mexican labour law (2012) International Labour Organization (ILO) FLA Code & Benchmarks Notes
standards
the brand should ensure that the
(b) periodic payment of remuneration to the true employer takes responsibility
worker; the fact that such remuneration for benefits and protections legally
constitutes the worker's sole or principal source due to the workers.
of income; provision of payment in kind, such as
food, lodging or transport; recognition of
entitlements such as weekly rest and annual
holidays; payment by the party requesting the
work for travel undertaken by the worker in order
to carry out the work; or absence of financial risk
for the worker.”

There are two other relevant documents,

Convention 181: Private Employment
5
Agencies Convention and Recommendation
6
188: Private Employment Agencies.

ILO Convention 181 shows particular concern

for the protection of freedom of association,
specifically that “Measures shall be taken to
ensure that the workers recruited by private
employment agencies providing the services
referred to in Article 1 are not denied the right to
freedom of association and the right to bargain
collectively.” However it does not address the
conditions under which agency workers can be
hired, nor does it limit the number or proportion
of agency workers who may work for a user
enterprise.

In addition, Article 11 of the Convention

stipulates: “A Member shall, in accordance with
national law and practice, take the necessary
measures to ensure adequate protection for the
workers employed by private employment
agencies as described in Article 1, paragraph
1(b) above, in relation to:

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Issue Mexican labour law (2012) International Labour Organization (ILO) FLA Code & Benchmarks Notes
standards
(a) freedom of association;
(b) collective bargaining;
(c) minimum wages;
(d) working time and other working conditions;
(e) statutory social security benefits;
(f) access to training;
(g) occupational safety and health;
(h) compensation in case of occupational
accidents or diseases;
(i) compensation in case of insolvency and
protection of workers claims;
(j) maternity protection and benefits, and
parental protection and benefits.”

Article 15-B requires that the ER.7.2 Employers shall have in place written Because agreements are meant to
outsourcing agreement be in policies and procedures regulating the recruitment be in writing, brand auditors should
writing. and hiring of contract/contingent/temporary ask to examine any agreement to
workers. determine the nature of the
employment relationship, as
above.
Liability for Mexico’s Federal Labour Law Article 12 of ILO Convention 181 states: “A The FLA Benchmarks require that employers pay Under the Federal Labour Law,
wages and treats the two types of entities Member shall determine and allocate, in contract workers directly and that they pay the outsourcing is prohibited when the
social providing labour to an employer accordance with national law and practice, the same compensation to contract workers as is paid activities performed are identical to
(subcontractors and employment respective responsibilities of private employment to regular workers, including all legally-mandated those carried out by direct
security
agencies) differently, whereas in agencies providing the services referred to in fringe benefits. Specifically: employees of the company.
obligations ILO Convention No. 181, both paragraph 1(b) of Article 1 and of user  ER.6.1 Employers shall use standard contract Workers who are hired through a
of entities are included under the enterprises in relation to: language with employment agencies that placement agency or an
7
outsourced same Article. (a) collective bargaining; specifically imparts power to employers to intermediary enjoy the same rights
workers (b) minimum wages; directly pay wages to migrant/contract/ as those contracted directly by the
Under Mexico’s Federal Labour (c) working time and other working conditions; contingent/temporary workers and ensures company.
Law, Articles 13 and 14 regulate (d) statutory social security benefits; equality of compensation and workplace
intermediation (employment (e) access to training; standards as set under the FLA Workplace The FLA’s Code provision #1
agencies), Articles 15 A, B, C y D, (f) protection in the field of occupational Code and national laws and regulations. Employment Relationship and
regulate subcontracting or safety and health;  ER.11.2 contract/contingent/temporary workers compliance Benchmarks are
outsourcing. In the case of (g) compensation in case of occupational receive at least the minimum wage or the similar, but make clear that there
subcontracting, the new law adds accidents or diseases; prevailing industry wage, whichever is higher, also should be equivalency in

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Issue Mexican labour law (2012) International Labour Organization (ILO) FLA Code & Benchmarks Notes
standards
an obligation on the beneficiary (h) compensation in case of insolvency and and all legally mandated fringe benefits; compensation and benefits
company to ensure employer protection of workers claims;  ER.11.2.1 contract/contingent workers receive between contract and regular
obligations are met by the (i) maternity protection and benefits, and at least the same compensation as regular workers.
contractor company. Failure to parental protection and benefits.” workers performing the same job functions or
meet the obligation may cause joint tasks with similar levels of experience or At minimum, auditors will need to
liability, although it is unclear how seniority ensure that all social security and
this obligation must be met.  ER.22.1 Employers shall provide all legally other legal obligations are being
mandated fringe benefits, including holiday, met (either by the factory or the
Article 15D prohibits an employer leave, bonuses, severance payments and 13th outsourcing company) and workers
from transferring workers to a month payments to all eligible workers within are receiving equal treatment
subcontractor for the purpose of legally defined time periods. (including ensuring there are no
diminishing their labour rights. deductions or other costs faced by
Article 1004-C defines the outsourced workers). For FLA-
monetary penalties for doing so. affiliated brands auditors will also
need to ensure that wages and
other compensation are also equal
between workers doing similar
work; other brands should aspire to
this higher standard.

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Issue Mexican labour law (2012) International Labour Organization (ILO) FLA Code & Benchmarks Notes
standards

2. Temporary, probationary and seasonal work

Short-term Article 37 sets out legal limits on To date, there is no international Convention The FLA defines “temporary worker” as “a person Mexican law says essentially that
contracts the use of short-term contracts. specifically on temporary work. However with a labor contract of limited or unspecified short-term contracts can only be
[specified Short-term contracts may only be companies should pay attention to related duration with no guarantee of continuation.” See used for work that is by its nature
used in the following cases: articles in other Conventions, such as ILO Glossary and Definitions, FLA Code and short-term, or where there is a
period vs
I. When it is required by the Convention 158: Termination of Benchmarks, p. 40. temporary need to substitute for a
continuous] nature of the work to be Employment Convention.
9
regular worker.
carried out; The FLA Code and Benchmarks stipulate that
II. In the event that the worker is Article 2 (3) of the Convention says “Adequate employers can hire “temporary workers” only if such The FLA Code and Benchmarks
temporarily replacing another safeguards shall be provided against recourse hiring is consistent with the national law of the make clear that using short-term
employee; and to contracts of employment for a specified country of production and one of the following contracts on regular basis or for
III. In all other cases as period of time the aim of which is to avoid the conditions is met: normal business needs is not
stipulated by Mexican Federal protection resulting from this Convention.  ER.8.1 the permanent workforce of the allowed.
Labour Law. Although Convention 158 has not been enterprise is not sufficient to meet unexpected
ratified by Mexico the above article makes or unusually large volume of orders; The FLA Code and Benchmarks
According to Article 39, upon clear that the use of short-term contracts to  ER.8.2 exceptional circumstances may result in represent a higher standard here in
completion of the specified time avoid employer obligations is contrary to the great financial loss to the supplier if delivery of that they disallow hiring
period, the employment spirit if not the letter of international goods cannot be met on time; or “contingent/temporary” workers for
relationship will continue conventions. UN’s Committee on Economic,  ER.8.3 work that needs to be done and is multiple terms, as a regular
automatically as long as there is Social and Cultural Rights has interpreted that outside the professional expertise of the practice, or for normal business
work to be effected and for the a violation of stability in employment as stated permanent workforce. needs.
duration of the time there is work by Convention 158 is a violation of the
to be effected; with no need to International Covenant on Economic, Social In addition, Employers shall not: To comply with both the law and
renew contracts for a specified and Cultural Rights (ratified by Mexico)  ER.9.1 use contract/contingent/temporary FLA Code a company must
period of time. The repeated whether or not the country has ratified the workers on a regular basis for the long-term or examine the nature of the work
renewal of contracts for a ILO’s convention. multiple short-terms; or being contracted as well as the
specified period of time is  ER.9.2 hire contract/contingent/temporary historical use of temporary
10
considered to be in violation of Recommendation No. 166 accompanying workers as a means to support normal business contracts to ensure that their use is
the law. this Convention also gives examples of needs on a continuous basis or as regular limited in the types of work that is
provisions that States could make in this employment practice. being contracted and that short-
According to a 2003 ruling of the regard: term contracts are not being used
Third Collegiate of the Nineteenth (a) limiting recourse to contracts for a repetitively or to support normal
Circuit Court, the existence of specified period of time to cases in which, business needs.
successive short-term owing either to the nature of the work to be
employment contracts over a long effected or to the circumstances under While the FLA Benchmarks do not

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Issue Mexican labour law (2012) International Labour Organization (ILO) FLA Code & Benchmarks Notes
standards

period of time should be which it is to be effected or to the interests address whether a worker hired
considered a long-term of the worker, the employment relationship more than once under such a
employment relationship, even cannot be of indeterminate duration; scheme would accumulate
when there are short-term breaks (b) deeming contracts for a specified period of seniority, it could be argued that in
in employment between those time, other than in the cases referred to in order to receive equal benefits
8
contracts. clause (a) to be contracts of employment seniority should be accrued.
of indeterminate duration; However if a worker is being hired
(c) deeming contracts for a specified period of multiple times under such a
time, when renewed on one or more scheme, the brand should evaluate
occasions, other than in the cases whether this violates the first
mentioned in clause (a), to be contracts of principle in FLA Benchmark ER.9
employment of indeterminate duration. about regular use of contingent
workers

Probationary Under Article 39-A, workers with A 2007 ILO decision provides some guidance FLA Benchmarks stipulate that “no workers shall Mexico law is a higher standard
periods either indeterminate contracts or on the issue: work more than three months cumulatively” in than the FLA Benchmarks.
contracts that exceed 180 days “The period of employment consolidation probationary or training categories (C.3). Production workers cannot have a
may be given a 30-day could be considered “a qualifying period probationary period that is longer
probationary period – only to of employment,” namely a specified than 30 days. However, Mexican
verify that the worker complies period of employment that is required for law has a lower standard for white
with the job requirements (in the the employees concerned to be able to collar workers, who can work for
opinion of the employer). That 30- have a permanent contract.” up to six months in completion of
day period can only be extended their training. Therefore, for mid-
to 180 days for managers, “The period should be “of reasonable management employees and office
executives, or white collar duration”. This is a question to be workers, it is to their benefit to
workers, not for production determined by each country for which apply the more favourable FLA
workers. Convention 158 (Termination of Benchmark.
Employment) is in force, having due

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Issue Mexican labour law (2012) International Labour Organization (ILO) FLA Code & Benchmarks Notes
standards

regard to the object of the Convention,

which is to protect all employees in all
branches of economic activity against
11
unjustified dismissal.”

Article 39-E stipulates that where For any contract/contingent/temporary worker who Auditors should check employee
the work continues after a becomes a permanent employee, seniority and records to ensure that any record
probationary period, the position other fringe benefits eligibility must be dated from of employment dates to their first
is deemed to be an indeterminate the first date as a contract/contingent/temporary contract rather than first day of
contract and seniority is to be worker and not from the first day of permanent permanent employment, if
calculated from the beginning of employment (ER.12). applicable.
the probationary period.

Under Article 39-D, workers The FLA Benchmarks say that “employers shall not Mexican law is clearer than the
cannot be hired on simultaneous make excessive use of fixed-term contracts or FLA Benchmarks, prohibiting more
or successive probationary schemes where there is no real intent to impart than one probationary period with
contracts, or on more than one skills or provide regular employment.” (ER.9.3) the same employer.
probationary contract with the More specifically, they say that “no workers shall
same employer. work more than three months cumulatively” in
probationary or training employment categories.
(C.3)

Training Under Article 39-B, a worker may As noted above, the FLA stipulates that “no workers Mexican law’s use of “training
periods also be hired for a training period shall work more than three months cumulatively” in periods” confuses the issue of a
of not more than 3 months (or six probationary or training categories (C.3). one-month “probationary period”.
months for managers, executives, In essence employers have a
or white collar workers). During the training or probationary period they must three-month period in which they
receive at least the minimum wage or the prevailing can dismiss a worker without
During this time the worker should industry wage, whichever is higher (ER.13.1), all consequences.
receive all salaries and benefits legally-mandated fringe benefits (ER.13.2) and be
normally due to a worker subject to workplace conditions as set by the FLA During that period, however,
performing that job. However at Workplace Code and national laws and regulations Mexican law is clearer that they
the end of this period the (ER.13.3). must receive all salaries and
employer can dismiss the worker benefits normally due to a worker

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Issue Mexican labour law (2012) International Labour Organization (ILO) FLA Code & Benchmarks Notes
standards

without any further obligation on in that position, while the FLA

the part of the employer (other Benchmarks only say they must
than pro-rated portion of receive the minimum or prevailing
mandatory benefits) provided that wage. In practice there should be
the employer first consults with little difference, but compensation
the company’s Joint Commission should be equal to that of other
on Productivity and Training workers during any training period.
(Comisión Mixta de Productividad,
Capacitación y Adiestramiento), a
worker/management committee
established in the workplace by
law.

Under Article 39-D, workers

cannot be hired on simultaneous
or successive training contracts,
or on more than one training
contract with the same employer.

12
Fixed, Under Article 39-F, Contracts ILO Convention 175 on Part-Time Work The FLA defines “temporary worker” as “a person While this loophole in Mexican law
discontinuous may be for “fixed” or addresses the question of rights and with a labor contract of limited or unspecified allows employers to categorize
or seasonal “discontinuous” work under the obligations due to Part Time workers: duration with no guarantee of continuation.” See work as “discontinuous” or “fixed”
new law, allowing employers to Glossary and Definitions, p. 40, FLA Code and and thereby hire them under short-
contracts
hire workers seasonally or only Article 4: Measures shall be taken to ensure Benchmarks. term contracts on a semi-regular
require labour for part of a week, that part-time workers receive the same basis, the FLA Code is more
month, or year. protection as that accorded to comparable full- The FLA Code and Benchmarks stipulate that restrictive: using short-term
time workers in respect of: Employers can hire “temporary workers” only if contracts for foreseeable events is
The same article stipulates that (a) the right to organize, the right to bargain such hiring is consistent with the national law of the contrary to the code, which only
these workers are entitled to the collectively and the right to act as workers' country of production and one of the following allows the use of temporary
same rights and obligations as representatives; conditions is met: workers when the permanent
permanent workers (pro-rated to (b) occupational safety and health;  ER.8.1 the permanent workforce of the workforce is insufficient to meet
time worked). (c) discrimination in employment and enterprise is not sufficient to meet unexpected “unexpected” or “unusually large”
occupation. or unusually large volume of orders; volume of orders.
 ER.8.2 exceptional circumstances may result in
Article 5: Measures appropriate to national great financial loss to the supplier if delivery of Auditors should ensure that any
law and practice shall be taken to ensure that goods cannot be met on time; or use of temporary workers is

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Issue Mexican labour law (2012) International Labour Organization (ILO) FLA Code & Benchmarks Notes
standards

part-time workers do not, solely because they  ER.8.3 work that needs to be done and is investigated to ensure that this is
work part time, receive a basic wage which, outside the professional expertise of the not a) a mis-categorization of what
calculated proportionately on an hourly, permanent workforce. are really regular work positions,
performance-related, or piece-rate basis, is and b) that large or seasonal
lower than the basic wage of comparable full- In addition, Employers shall not: volumes that required the use of
time workers, calculated according to the same  ER.9.1 use contract/contingent/temporary temporary workers was truly
method. workers on a regular basis for the long-term or “unexpected” or “unusual”.
multiple short-terms; or
Article 6: Statutory social security schemes  ER.9.2 hire contract/contingent/temporary
which are based on occupational activity shall workers as a means to support normal business
be adapted so that part-time workers enjoy needs on a continuous basis or as regular
conditions equivalent to those of comparable employment practice.
full-time workers; these conditions may be
determined in proportion to hours of work, Other relevant benchmarks:
contributions or earnings, or through other  ER.11.6 contract/contingent/temporary workers
methods consistent with national law and who are hired on more than one occasion for
practice. seasonal production and specialization sign a
separate contract for each new hire event. The
Article 7: Measures shall be taken to ensure workplace retains the same identification
that part-time workers receive conditions number and all relevant information in each
equivalent to those of comparable full-time worker’s personnel file; and
workers in the fields of:  ER.11.7 contract/contingent/temporary workers
(a) maternity protection; are given priority when the enterprise is seeking
(b) termination of employment; ‘new’ permanent employees.
(c) paid annual leave and paid public  ER.12: For any contract/contingent/ temporary
holidays; and worker who becomes a permanent employee,
(d) sick leave, seniority and other fringe benefits eligibility
It being understood that pecuniary entitlements must be dated from the first date as a
may be determined in proportion to hours of contract/contingent/temporary worker and not
work or earnings. from the first day of permanent employment.

Work by the Under Article 83, workers’ wages See protections regarding equal treatment in The FLA defines a “contingent worker” (also known The FLA Code and Benchmarks
hour may now also be calculated by ILO Convention 175, above as casual worker) as “a person who works represent a higher standard here in
the hour, so long as the legal occasionally and intermittently. Such workers are that they disallow hiring
maximum of hours worked per employed for a specific number of hours, days or “contingent” workers for multiple

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Issue Mexican labour law (2012) International Labour Organization (ILO) FLA Code & Benchmarks Notes
standards

day is not exceeded, other labor weeks.” See Glossary and Definitions, FLA Code terms, as a regular practice, or for
laws are not violated, and the and Benchmarks, p. 39. normal business needs.
worker is not paid for less than a
13
day’s work.  ER.11.2 contract/contingent/temporary workers Also, while Mexican law allows the
receive at least the mínimum wage or the payment of a “general minimum
This allows the employer to pay prevailing industry wage, whichever is higher, wage” for hourly workers, the FLA
the general minimum wage per and all legally mandated fringe benefits. Benchmarks say that workers must
day, which is considerably lower Workers should also be informed about the receive at least the legal minimum
than the officially mandated legal minimum wage. (C.2) or prevailing industry wage,
professional minimum wage for whichever is higher, and in any
14
sewers in the garment industry. Other relevant benchmarks: event should receive the same
It also allows the employer to  ER.11.6 contract/contingent/temporary workers compensation and benefits as a
keep a worker underemployed who are hired on more than one occasion for regular worker.
(working hours according to the seasonal production and specialization sign a
employer’s needs) and without separate contract for each new hire event. The
payment for the 7th day. workplace retains the same identification
number and all relevant information in each
As with the expansion of short worker’s personnel file; and
term contracts in Article 39, this  ER.11.7 contract/contingent/temporary workers
form of hiring is also problematic are given priority when the enterprise is seeking
because the worker is ‘liquidated’ ‘new’ permanent employees.
at the end of each contract,  ER.12: For any contract/contingent/ temporary
meaning that the worker cannot worker who becomes a permanent employee,
accumulate seniority related seniority and other fringe benefits eligibility
rights. must be dated from the first date as a
contract/contingent/temporary worker and not
from the first day of permanent employment.
 ER.11.2.1 contract/contingent workers receive
at least the same compensation as regular
workers performing the same job functions or
tasks with similar levels of experience or
seniority.

Seniority Article 159. Aptitude and There is specific requirement in FLA Benchmarks Mexican law allows employers
productivity have been introduced for seniority: considerable discretion for
as criteria for determining  ER 11.2.1 Contract/contingent workers receive promotion and training, so the

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Issue Mexican labour law (2012) International Labour Organization (ILO) FLA Code & Benchmarks Notes
standards

promotion. Seniority, while still at least the same compensation as regular employer’s practice in this regard
one of the criteria for promotion, is workers performing the same job functions or should be examined closely.
no longer a defining criterion for a tasks with similar levels of experience or
worker to access training or seniority Although the FLA’s Benchmarks
promotion. This means that the  ER.12 For any contract/contingent/temporary are not fully spelled out, the
employer can exclude some worker who becomes a permanent employee, requirement for written policy and
workers from training, and permits seniority and other fringe benefits eligibility procedures as well as fairness and
an arbitrary evaluation of must be dated from the first date as a transparency (to workers) provides
productivity and/or aptitude for the contract/contingent /temporary worker and not a basis for ensuring that the
job. from the first day of permanent employment. employer is not using access to
 ND.7.1 Employers shall not, on the basis of a training and promotion as a
woman’s pregnancy, make any employment discriminatory measure (for
decisions that negatively affect a pregnant example against union members).
woman’s employment status, including
decisions concerning dismissal, loss of
seniority, or deduction of wages.

Other relevant FLA Benchmarks:

 ER.28.2 Trainings shall be documented and
workers shall clearly understand what is
required of them in order to advance to the next
level within the factory.
 ER.30.1 Employers shall have written policies
and procedures with regard to promotion,
demotion, and job reassignment that are
transparent and fair in their implementation.
 ER.30.1.1 Policies and procedures should
outline the criteria for promotion, demotion, and
job reassignment scheme, demonstrate
linkages to job grading, and prohibit
discrimination or use of demotion or job
reassignment as a form of penalty or
punishment.
 ER.30.1.2 Outcomes should be provided in
writing and seek feedback and agreement/
disagreement from employees in writing.

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Issue Mexican labour law (2012) International Labour Organization (ILO) FLA Code & Benchmarks Notes
standards

 ER.30.1.3 Processes should follow local legal

requirements.
 ER.30.2 Policies and procedures should be
communicated to the workforce and reviewed
regularly.
 ND.2.1 Recruitment and employment policies
and practices, including job advertisements, job
descriptions, and job performance/ evaluation
policies and practices shall be free from any
type of discriminatory bias.
 ND.2.2 If not provided by law, employers must
provide protection to workers who allege
discrimination in recruitment and employment
practices.

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Issue Mexican labour law (2012) International Labour Organization (ILO) FLA Code & Benchmarks Notes
standards

3. Freedom of Association
Union The authorities have the right to ILO Convention 87, Freedom of Although the registration of unions is outside of the The main problem is not the
certification deny registration of a union Association and Protection of the Right to employer’s control, the FLA’s Benchmarks are clear registration process per se, but
15
seeking legal certification in some Organise, states the following: that “workers, without distinction whatsoever, shall rather, that the registration of a
limited cases. See Article 366. have the right to establish and to join organizations union is not merely administrative
Article 2: The public authorities shall refrain of their own choosing, subject only to the rules of in nature, as should be the case
However, the labour authorities from any interference which would restrict the organization concerned, without previous according to Convention No. 87.
regularly use this right to deny this right or impede the lawful exercise authorization.” (FOA.2) Also, “when the right to Instead, proof of registration (“toma
registration of independent thereof. freedom of association and collective bargaining is de nota” or legal recognition) is the
unions, restricted under law, employers shall not obstruct only legal document which permits
Article 7: The acquisition of legal personality legal alternative means of workers association.” the union and its leadership to act
by workers' and employers' organisations, (FOA.3) before authorities and third parties
federations and confederations shall not be (Articles 368 and 692 Section V).
made subject to conditions of such a Other relevant Benchmarks:
character as to restrict the application of the  FOA.11 Employers shall not interfere with the Denial of registration of an
provisions of Articles 2, 3 and 4 hereof. right of workers to draw up their constitutions independent union is something
and rules, to elect their representatives in full that should be fully investigated in
Paragraphs 294 to 308 of the June 15, 2012 freedom, to organize their administration and order to determine if the workers’
reports of the Freedom of Association activities, and to formulate their programs. right to freedom of association is
Committee of the ILO provide a summary of  FOA.12 Employers shall not attempt to being violated. Such cases should
16
the criteria for union registration. influence or interfere in any way, to the be brought to the attention of the
detriment of workers’ organizations, with members of the Mexico Committee
ILO Convention 98, Right to Organize and government registration decisions, procedures for discussion and guidance.
17
Collective Bargaining, which Mexico has and requirements regarding the formation of
not ratified, states: workers’ organizations. Employers should recognize and
 FOA.13.1 Employers shall not interfere with the negotiate with workers’
“Workers shall enjoy adequate protection right to freedom of association by favoring one organizations, even if they have
against acts of anti-union discrimination in workers’ organization over another. not completed the administrative
respect of their employment. Workers' and  FOA.13.1.1 In cases where a single union registration process.
employers' organisations shall enjoy represents workers, employers shall not
adequate protection against any acts of attempt to influence or interfere in any way in
interference by each other or each other's workers’ ability to form other organizations that
agents or members in their establishment, represent workers.
functioning or administration.”  FOA.20.1 Collective bargaining agreements

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Issue Mexican labour law (2012) International Labour Organization (ILO) FLA Code & Benchmarks Notes
standards

It goes on to say, “acts which are designed to that have not been negotiated freely, voluntarily
promote the establishment of workers' and in good faith shall be considered not
organizations under the domination of applicable.
employers or employers' organizations, or to  FOA.20.2 Provisions in collective bargaining
support workers' organizations by financial or agreements that contradict national laws, rules
other means, with the object of placing such and procedures or offer less protection to
organizations under the control of employers workers than provisions of the FLA Workplace
or employers' organizations, shall be deemed Code shall also be considered not applicable.
to constitute acts of interference within the
meaning of this Article.”

The Convention also calls for “the full

development and utilization of machinery for
voluntary negotiation between employers or
employers' organizations and workers'
organiations, with a view to the regulation of
terms and conditions of employment by
means of collective agreements.”
Exclusion Exclusion clauses may continue The criteria set out by the Freedom of The FLA Benchmarks are clear that Mexico’s Federal Labour Law now
clauses to be used with regard to new Association Committee of the ILO are as “Employment decisions shall not be made on the forbids the dismissal of workers
workers (union membership as a follows: “While it may generally be to the basis of union affiliation or sympathy” (ER.3.2). In who cease to be members of a
condition of hiring), however an advantage of workers to avoid a multiplicity of addition, “Employers shall not engage in any acts of union prior to the signing or
exclusion clause will not apply to trade union organizations, unification of the anti-union discrimination or retaliation, i.e. shall not revision of a CBA that contains an
workers who are already trade union movement imposed through state make any employment decisions which negatively exclusion clause, however it still
employed prior to the signing or intervention by legislative means runs affect workers based wholly or in part on a workers’ allows exclusion from hiring on the
revision of a collective bargaining counter to the principle embodied in Articles union membership or participation in union activity, basis that a worker does not join
agreement with an exclusion 2 and 11 of Convention No. 87. Exclusion including the formation of a union, previous the union.
18
clause. clauses for hiring constitute a legislative employment in a unionized facility, participation in
20
intervention to promote union unification.” collective bargaining efforts or participation in a The FLA has made clear in its
This change in the Law reinforces legal strike.” (FOA.5.1) Benchmarks that this practice is
the 2001 Supreme Court decision not in compliance with the FLA
that exclusion clauses for Code. Article 2 of Mexico’s
19
dismissal were unconstitutional. Federal Labour Law reinforces
these benchmarks by stating that
“decent work includes unrestricted
respect for the collective rights of

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Issue Mexican labour law (2012) International Labour Organization (ILO) FLA Code & Benchmarks Notes
standards

workers, such as freedom of

association, autonomy, and the
right to strike and to bargain
collectively.”

Hiring and firing practices should

be examined – not only in policy,
but also in practice – to ensure that
workers are not discriminated
against.
Transparency Under Article 365 bis, workers Article 3 of ILO Convention 87 states that The FLA requires that “where a union exists in the Although Mexican law allows
are allowed to request access to “Workers' organizations shall have the right workplace, employers shall make available a copy workers to request a copy of their
union registration documents to draw up their constitutions and rules, to of the collective bargaining agreement to all CBA without retaliation, the better
which must include union bylaws, elect their representatives in full freedom, to workers and other interested parties” (ER.16.2). practice is to make the CBA
names of the executive organize their administration and activities available to them so that workers
committee, and financial and to formulate their programs. The public There can be no discrimination or retaliation for don’t have to individually request a
statements including information authorities shall refrain from any interference participating in union activity, which could be copy, removing that risk for
on the use of union dues. Under which would restrict this right or impede the interpreted to include requesting a copy of the CBA workers. Also, as the “public”
Article 373, workers cannot be lawful exercise thereof.” (FOA.5.1). version of the CBA that Juntas are
expelled from the union or fired supposed to post online is not
for requesting this information. Employers and worker representatives shall bargain necessarily the full copy, brands
Under Article 391 bis, a public in good faith, i.e. engage in genuine and should not currently rely on the
version of the Collective constructive negotiations and make every effort to Juntas as a means of meeting this
Bargaining Agreement must be reach an agreement (FOA.16.2). standard.
made available on the
Conciliation and Arbitration
Board’s (Junta de Conciliación y
Arbitraje) website – although it is
unclear what is to be included in
the “public version” and how it is
distinguished from an ordinary
copy of the CBA.

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Issue Mexican labour law (2012) International Labour Organization (ILO) FLA Code & Benchmarks Notes
standards

Article 365 stipulates that when The danger of retribution for members of an Forbidding retaliation against
registering a union, the union is independent union who are named in these workers for union membership is a
required to provide the documents is high. The FLA Benchmarks forbid any general principle in codes and ILO
Conciliation and Arbitration Board acts of anti-union discrimination or retaliation. Conventions. Auditors should be
with the names and addresses of (FOA.5.1) on the lookout for any potential
all of its members. discrimination. If lists of members
are made public in any way, the
auditors should pay attention to the
employment records of workers
listed to look for any signs of
discrimination or retaliation.

Election of Article 371 (VII and XI) requires ILO Convention 135, Workers’ FOA.11 Employers shall not interfere with the right In theory at least, these changes in
21
union that there be fixed periods for Representatives Convention, defines the of workers to draw up their constitutions and rules, the Law could give workers a
representatives elections set out in the union rights of worker representatives and prohibits to elect their representatives in full freedom, to greater opportunity to select their
bylaws, and that these elections, discrimination against them, but does not organize their administration and activities, and to union representatives. Whether
whether direct or indirect, be by define how they shall be selected. formulate their programs. worker representatives that sign
secret ballot. the CBA are elected by the
workers is also an indication for
auditors as to whether the CBA is
a protection contract.

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Issue Mexican labour law (2012) International Labour Organization (ILO) FLA Code & Benchmarks Notes
standards

4. Firings and reinstatement

23
The revised Law adds a new “just Article 5 of ILO Convention 158 forbids The FLA Benchmarks include numerous The interpretation of this provision
cause” for termination, which now termination on any of the following grounds: safeguards for whistleblowers, most worded in the of the Law is unclear and could
allows termination for (a) union membership or participation in following manner: potentially be used by employers
mistreatment of management or union activities outside working hours  ND.2.2 If not provided by law, employers must as a pretext to punish
of the company’s clients or or, with the consent of the employer, provide protection to workers who allege whistleblowers.
22
suppliers. within working hours; discrimination in recruitment and employment
(b) seeking office as, or acting or having practices. The FLA code clearly protects
acted in the capacity of, a workers' workers that allege problems in the
representative; Similar whistleblower protections specific to other factory. For non-FLA brands, ILO
(c) the filing of a complaint or the types of allegations are contained in Benchmarks Convention 158 forbids
participation in proceedings against an ER.23.6, ND.3.2, ND.4.2, ND.7.2, ND.8.2, H/A.8.3, termination for filing complaints.
employer involving alleged violation of FOA.19.2, HSE.11.2, HSE.12.2, HOW.4.2, While this may only protect
laws or regulations or recourse to HOW.5.2. workers who file official complaints,
competent administrative authorities; the spirit of the convention should
(d) race, colour, sex, marital status, family also be interpreted to protect
responsibilities, pregnancy, religion, workers who also raise problems
political opinion, national extraction or with brands or their
social origin; representatives.
(e) absence from work during maternity
leave.

The range of causes for Article 7 of ILO Convention 158 states: The FLA Benchmarks require a fair and non- Again, ILO Convention 158
termination has been expanded to “The employment of a worker shall not be discriminatory system of progressive discipline suggests that there needs to be
include failure of the worker to terminated for reasons related to the worker's which is clearly communicated to workers. procedural fairness in terminating
provide all necessary documents conduct or performance before he is provided Specifically, employment, including providing
relating to their work. Further, the an opportunity to defend himself against the  ER.27.1 Employers shall have written notice and reasons to the workers
employer may now give written allegations made, unless the employer disciplinary rules, procedures and practices that to be laid off or fired.
notice of cause for discharge to cannot reasonably be expected to provide embody a system of progressive discipline (e.g.
the Labor Board within a period of this opportunity.” a system of maintaining discipline through the The FLA Code and Benchmarks
five working days, rather than application of escalating disciplinary action are quite specific that written
immediately and directly to the moving from verbal warnings to written policies and practise must be in
worker. This makes it easier to warnings to suspension and finally to place, which should outline a fair
terminate workers and, by termination). and transparent practice. Auditors

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Issue Mexican labour law (2012) International Labour Organization (ILO) FLA Code & Benchmarks Notes
standards

removing the right of the worker to  ER.27.2 Employers shall ensure managers and should examine any terminations
know why s/he was fired, makes it supervisors are fully familiar with the workplace to ensure that they met this
harder to challenge the dismissal. disciplinary system and in applying appropriate requirement.
disciplinary practices.
 ER.27.2.1 The disciplinary system shall be
applied in a fair and non-discriminatory manner
and include a management review of the
actions by someone senior to the manager who
imposed the disciplinary action.
 ER.27.2.2 Employers shall maintain written
records of all disciplinary actions taken.
 ER.27.3 Disciplinary rules, procedures and
practices shall be clearly communicated to all
workers. Any exceptions to this system (e.g.
immediate termination for gross misconduct,
such as theft or assault) shall also be in writing
and clearly communicated to workers.
 ER.27.3.1 Workers must be informed when a
disciplinary procedure has been initiated
against them.
 ER.27.3.2 Workers have the right to participate
and be heard in any disciplinary procedure
against them.
 ER.27.3.3 Workers must sign all written records
of disciplinary action against them.
 ER.27.3.4 Records of disciplinary action must
be maintained in the worker’s personnel file.
 ER.27.4 The disciplinary system shall include a
third party witness during imposition, and an
appeal process.
 ER.32.1 Employers shall have in place a formal
written policy governing all aspects and modes
of termination and retrenchment.
 ER.32.2 Employers shall maintain proper and
accurate records in relation to termination and
retrenchment.

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Issue Mexican labour law (2012) International Labour Organization (ILO) FLA Code & Benchmarks Notes
standards

Although the worker may still The ILO Convention on Termination When workers are unjustly dismissed due to an act The FLA Benchmarks are the
24
request reinstatement, back pay (C158) does not specify any limits on back of union discrimination, the FLA Benchmarks state: higher standard here – they require
in proven cases of unjust pay or compensation. (at least in the case of FOA
termination is capped at 12  FOA.6 Workers who have been unjustly discrimination) that “all” rights and
months. This, despite evidence dismissed, demoted or otherwise suffered a loss privileges be restored, which
that employers often delay back of rights and privileges at work due to an act of should include any back pay
pay cases for years to pressure union discrimination shall, subject to national beyond the 12 month period, with
employees to accept less than laws, be entitled to restoration of all the rights interest.
their legal entitlement in out-of- and privileges lost, including reinstatement, if
court settlements, and despite the they so desire.
reform to Article 875 which
prolongs rather than shortens
cases. If the case goes beyond 12
months, the worker is only entitled
to 12 months back-pay plus
interest of 2% per month (on the
value of the salary) for up to 15
months.

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Issue Mexican labour law (2012) International Labour Organization (ILO) FLA Code & Benchmarks Notes
standards

5. Women’s rights and gender and other forms of discrimination

Parental leave Article 170 allows shifting of four Article 4 of Convention 183, Maternity The Benchmarks do not specify any times for Mexican law is the most specific
25
of the six weeks of legally- Protection, says that “a woman to whom parental leave and/or nursing breaks, but do include standard on these two practices.
mandated maternity leave from this Convention applies shall be entitled to a the following general provisions:
before the birth to after the birth period of maternity leave of not less than 14
(to total 10 weeks maternity leave weeks” and that “with due regard to the • ER.14 Employers shall ensure that all legally
after the birth and two weeks prior protection of the health of the mother and mandated requirements for the protection or
to birth, at full pay), if the worker that of the child, maternity leave shall include management of special categories of workers,
requests it with approval of her a period of six weeks' compulsory leave after including migrant, juvenile,
doctor. Post-partum leave may be childbirth, unless otherwise agreed at the contract/contingent/temporary, home workers,
extended by 2 weeks if the child is national level by the government and the pregnant or disabled workers, are implemented.
born requiring medical attention. representative organizations of employers  ND.7.1 Employers shall not, on the basis of a
Women will receive 6 weeks paid and workers.” woman’s pregnancy, make any employment
maternity leave after adopting a decisions that negatively affect a pregnant
child. Men will be able to take up . woman’s employment status, including
to 5 days paternity leave, whereas decisions concerning dismissal, loss of
previously they would have had to seniority, or deduction of wages.
use their annual vacation for this  ND.8.1 Employers shall abide by all protective
purpose. provisions in national laws and regulations
Nursing breaks Nursing breaks (two half-hour Article 10 of ILO Convention 183 says “A benefitting pregnant workers and new mothers,
breaks per day) are now limited to woman shall be provided with the right to one including provisions concerning maternity leave
a six month period after birth, or more daily breaks or a daily reduction of and other benefits; prohibitions regarding night
whereas previously they were hours of work to breastfeed her child” and work, temporary reassignments away from work
unlimited. The employer may that “The period during which nursing breaks stations and work environments that may pose
reduce the work day by one hour or the reduction of daily hours of work are a risk to the health of pregnant women and their
instead of providing two half-hour allowed, their number, the duration of nursing unborn children or new mothers and their new
breaks.(Article 170-IV) breaks and the procedures for the reduction born children, temporary adjustment of working
of daily hours of work shall be determined by hours during and after pregnancy, and the
national law and practice. These breaks or provision of breast-feeding breaks and facilities.
the reduction of daily hours of work shall be  ND.8.1.1 Where such legal protective
counted as working time and remunerated provisions are lacking, employers shall take
accordingly.” reasonable measures to ensure the safety and
health of pregnant women and their unborn
children.


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Issue Mexican labour law (2012) International Labour Organization (ILO) FLA Code & Benchmarks Notes
standards

 ND.8.1.2 Such measures shall be taken in a

manner that shall not unreasonably affect the
employment status, including compensation of
pregnant women.

Harassment Harassment and sexual Although there is not a specific ILO In general terms, the FLA Code is clear that “every The FLA Code and Benchmarks
harassment, as defined in Article Convention on sexual and other forms of employee shall be treated with respect and dignity. are more specific and detailed on
3 Bis, are now just cause for harassment, the ILO points to Conventions No employee shall be subject to any physical, this issue.
terminating the harasser (Article 100 (Equal Remuneration) and 111 sexual, psychological or verbal harassment or
47). (Discrimination, Employment and abuse.”
Occupation), and the principle of non-
Article 133 prohibits harassment discrimination contained in those H/A.8.1 Employers shall ensure that the workplace
and sexual harassment in the conventions, as providing for the right of is free from any type of violence, harassment or
workplace. Employers are workers to equal treatment and a conducive abuse, be it physical, sexual, psychological, verbal,
26
prohibited from sexually harassing work environment. or otherwise.
any other person in the workplace
(XII) and are also prohibited from With respect to specific disciplinary procedures,
permitting or tolerating such acts Benchmark H/A.11 says that “employers shall have
(XIII). a system to discipline supervisors, managers or
workers who engage in any physical, sexual,
psychological or verbal violence, harassment or
abuse, through measures such as compulsory
counseling, warnings, demotions, and terminations
or a combination thereof regardless of whether
such action was intended as a means to maintain
labor discipline.”

In addition, Benchmark H/A.9.4 says “employers

shall refrain from any action, and shall take all
appropriate action to ensure that all workers refrain
from any action, that would result in a sexually
intimidating, hostile or offensive work environment
for workers.”
Discrimination Article 133 (I) expands ILO Convention 111 defines discrimination The FLA Code and Benchmarks prohibit any The FLA Benchmarks are more
protections against discrimination as being “any distinction, exclusion or discrimination in employment, including hiring, explicit than either the Federal

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Issue Mexican labour law (2012) International Labour Organization (ILO) FLA Code & Benchmarks Notes
standards

for workers by expressly preference made on the basis of race, colour, compensation, advancement, discipline, termination Labour Law or ILO Conventions in
prohibiting new categories of sex, religion, political opinion, national or retirement on the basis of gender, race, religion, prohibiting testing for HIV/AIDS
discrimination with regard to hiring extraction or social origin, which has the age, disability, sexual orientation, nationality, and gender-based discrimination in
and to working conditions. effect of nullifying or impairing equality of political opinion, social group or ethnic origin. recruitment and job
opportunity or treatment in employment or advertisements.
27
The reform expands prohibited occupation.” ND.2 prohibits discrimination in recruitment,
bases for discrimination in hiring including job descriptions and advertisements. The Federal Labour Law goes
decisions (which already included ILO Convention 100 enshrines the right of ND.3 requires equal pay for work of equal value. further than the FLA Benchmarks
age and sex) to also include workers to equal remuneration for work of ND.4 prohibits discrimination on the basis of marital in prohibiting discrimination on the
28
ethnic or national origin, gender, equal value. status. basis of social status and family
disability, social status, health ND.5 prohibits pregnancy testing as a condition of responsibilities.
conditions, religion, personal hiring or continuation of employment.
views, sexual orientation, and civil ND.6 prohibits discrimination on the basis of
status as prohibited bases for marriage or pregnancy.
discrimination in hiring decisions. ND.9 prohibits discrimination on the basis of health
status.
The reform, in Article 56, ND.10 prohibits requiring medical tests for any
expands prohibited bases for disease or illness, such as HIV/AIDS, that does not
discrimination related to working have an immediate effect on a person’s fitness and
conditions (which already is not contagious.
included race, nationality, sex, ND.11 requires the employer to respect the
age, religion, and political views) confidentiality of workers’ health status.
to also include ethnic origin, ND.12 requires the employer to take measures to
gender, disability, social status, reasonably accommodate workers with (chronic)
health conditions, personal views, illnesses, including HIV/AIDS.
sexual orientation, pregnancy,
family responsibilities, and civil
status.

Pregnancy Employers are now prohibited Article 8 of ILO Convention 183 prohibits ND.5.1 prohibits pregnancy testing or the use of
testing from demanding medical proof the dismissal of a woman employee during contraception as a condition of hiring or continued
that a worker is not pregnant as a her pregnancy or maternity leave, except on employment.
grounds unrelated to pregnancy or birth of ND.6.1 prohibits threatening female workers with
condition of employment or
the child and its consequences or nursing. dismissal or any other employment decision that
promotion (Article 133, XIV). negatively affects their employment status in order

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Issue Mexican labour law (2012) International Labour Organization (ILO) FLA Code & Benchmarks Notes
standards

Article 9 states that each Member shall to prevent them from getting married or becoming
Employers are also prohibited adopt appropriate measures to ensure that pregnant.
from dismissing a worker due to maternity does not constitute a source of ND.7.1 prohibits employers from making
discrimination in employment, including employment decisions on the basis of a worker’s
her pregnancy or pressuring her,
access to employment. pregnancy that negatively affect the employment
directly or indirectly, to resign status of the worker, such as dismissal, loss of
(Article 133, XV). seniority, or deduction of wages.
ND.8.1 requires employers to take reasonable
measures to ensure the health and safety of
pregnant women and their unborn children.

Mexico Committee, Americas Group, January 2015 | 24

Issue Mexican labour law (2012) International Labour Organization (ILO) FLA Code & Benchmarks Notes
standards

6. Wages and profit sharing

Direct Deposit Wages can now be paid Article 3 (2) of ILO Convention 95, There is no specific provision regarding electronic Direct payment of wages should be
29
electronically (e.g. direct deposit) Protection of Wages, says: “The payments in the FLA Benchmarks, provided that the accompanied by clear information
but only with the consent of the competent authority may permit or prescribe following conditions are still met: provided to the worker concerning
worker. (Article 101) the payment of wages by bank cheque or the pay calculations.
postal cheque or money order in cases in  C.13 Pay Statement: Employers shall provide
which payment in this manner is customary workers a pay statement each pay period and
or is necessary because of special not less frequently than once a month, which
circumstances, or where a collective shall show:
agreement or arbitration award so provides,  C.13.1 earned wages,
or, where not so provided, with the consent of  C.13.2 wage calculations,
the worker concerned.”  C.13.3 total number of hours worked,
 C.13.4 regular and overtime pay,
Article 14 says: Where necessary, effective  C.13.5 bonuses,
measures shall be taken to ensure that  C.13.6 all deductions, and
workers are informed, in an appropriate and
 C.13.7 final total wage.
easily understandable manner--
(a) before they enter employment and
 C.14.1 All compensation records, including
when any changes take place, of the
wages and fringe benefits whether in cash or in-
conditions in respect of wages under
kind, must be properly documented and their
which they are employed; and
receipt and accuracy must be confirmed by the
(b) at the time of each payment of
relevant worker in writing (e.g. signature,
wages, of the particulars of their
thumbprint).
wages for the pay period concerned,
in so far as such particulars may be  C.14.2 No one can receive wages on behalf of
subject to change. a worker, unless the worker concerned has, in
full freedom, authorized in writing for another
person to do so.

Pay by the hour As noted above, payment by the  ER.11.2 Contract/contingent/temporary workers
hour is now legalized provided the receive at least the minimum wage or the
worker is not paid for less than a prevailing industry wage, whichever is higher,
day’s work. (Article 83) and all legally mandated fringe benefits.
Workers should also be informed about the
legal minimum wage (C.2).

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Issue Mexican labour law (2012) International Labour Organization (ILO) FLA Code & Benchmarks Notes
standards

Profit sharing Previously, outsourced workers There are no ILO standards on profit sharing. The provisions for payment of contracted workers Where outsourcing is used
were entitled only to a share in include ensuring that they receive the same legitimately under the law and/or
the profits from the outsourcing compensation as regular workers, and all legally- FLA Code, auditors should still
company. A common practice mandated benefits. Specifically: examine payments for profit
was to establish a separate  ER.6.1 Employers shall use standard contract sharing to ensure consistency with
service company that employed language with employment agencies that the letter and intent of Mexican
the workers but had a much lower specifically imparts power to employers to law. The common use of fake
profit margin and paid out smaller directly pay wages to migrant/contract/ outsourcing companies to avoid
shares to workers as a result, or contingent/temporary workers and ensures profit-sharing is a known risk that
to hire the workforce through an equality of compensation and workplace should be red-flagged.
outsourcing company. Under the standards as set under the FLA Workplace
revised Law (Articles 15, 15A), as Code and national laws and regulations. Companies also often claim that
described above, outsourcing can  ER.11.2 Contract/contingent/temporary workers profits were not realized in Mexico
only be used in certain instances. receive at least the minimum wage or the in order to decrease their
If the outsourcing relationship fails prevailing industry wage, whichever is higher, payments. Since failure to pay
those tests, the beneficiary and all legally mandated fringe benefits. proper profit sharing benefits often
company may be liable for  ER.11.2.1 contract/contingent workers receive results in worker protests and/or
payment of a share of its profits to at least the same compensation as regular work stoppages, this is also a risk
any outsourced workers in the workers performing the same job functions or for buyers.
same manner as any direct tasks with similar levels of experience or
employee. (Articles 15, 15-A) seniority
 ER.22.1 Employers shall provide all legally
mandated fringe benefits, including holiday
leave, bonuses, severance payments and 13th
month payments to all eligible workers within
legally defined time periods.

Mexico Committee, Americas Group, January 2015 | 26

Endnotes
1
On November 30, 2012, the Mexican government introduced changes to its Federal Labour Law. However, due to the ambiguous language of some of the revisions made to provisions of the Law, it is still unclear how they will be interpreted
by the labour authorities and the courts, This document compares changed sections of the Law that will be of particular interest to labour compliance auditors with relevant ILO Conventions and the Code and Benchmarks of the Fair Labor
Association. The English translations of the revised provisions of the Federal Labour Law are by MSN; all footnotes reference the official Spanish version. The full revised Labour Law is available at:
http://www.diputados.gob.mx/LeyesBiblio/pdf/125.pdf
For a file that shows only the 2012 revisions see: http://www.diputados.gob.mx/LeyesBiblio/ref/lft/LFT_ref26_30nov12.pdf . (Where there are quotation marks around sections of the text, it means these sections are unchanged.)
2
The Fair Labor Association (FLA) is a collaborative effort of companies, universities and civil society organizations working to ensure respect for workers’ right in global supply chains. The FLA Code and Benchmarks can be found at:
http://www.fairlabor.org/sites/default/files/fla_complete_code_and_benchmarks.pdf Reference numbers for relevant benchmarks are noted in each entry of this text.
3
National Reports on Outsourcing, 2007. http://www.ilo.org/wcmsp5/groups/public/@ed_dialogue/@dialogue/documents/meetingdocument/wcms_159885.pdf
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http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_INSTRUMENT_ID:312535
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http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_INSTRUMENT_ID:312326. Convention 181 has not been ratified by Mexico.
6
http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:55:0:::55:P55_TYPE,P55_LANG,P55_DOCUMENT,P55_NODE:SUP,en,R188,/Document
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Convention No. 181 Concerning Private Employment Agencies, Article 1- a and b: http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO:12100:P12100_INSTRUMENT_ID:312326:NO .
8
http://sjf.scjn.gob.mx/sjfsist/Paginas/DetalleGeneralV2.aspx?Epoca=&Apendice=&Expresion=&Dominio=&TA_TJ=&Orden=1&Clase=SistematizacionDetalleTesisBL&NumTE=1&Epp=20&Desde=-100&Hasta=-
100&Index=0&ID=184179&Hit=1&IDs=184179&tipoTesis=2&idCto=19&indice=T&origen=T&idEpoca=2003005&idMateria=5&idTcc=268&Semanario=0&tabla=
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http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO:12100:P12100_ILO_CODE:C158. Mexico has not ratified Convention 158.
10
http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO:12100:P12100_ILO_CODE:R166
11
http://www.eurofound.europa.eu/eiro/2008/01/articles/fr0801029i.htm and
http://www.ilo.org/dyn/normlex/en/f?p=1000:50012:0::NO:50012:P50012_COMPLAINT_PROCEDURE_ID,P50012_LANG_CODE:2507306,en:NO
12
http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO:12100:P12100_INSTRUMENT_ID:312320:NO. Convention 175 has not been ratified by Mexico.
13
For example, health care and social security benefits must be provided, as must pro-rated vacation pay and end-of-year-bonus.
14
For information in Spanish on general and professional minimum wages by region, go to: http://www.conasami.gob.mx/nvos_sal_2014.html
For information in English on general and professional minimum wages by region, see: http://www.wageindicator.org/main/salary/minimum-wage/mexico
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http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_INSTRUMENT_ID:312232. Mexico has ratified Convention 87.
16
http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---normes/documents/publication/wcms_090632.pdf
17
http://www.ilocarib.org.tt/projects/cariblex/conventions_3.shtml. Mexico has not ratified Convention 98.
18
Article 395: “En el contrato colectivo podrá establecerse que el patrón admitirá exclusivamente como trabajadores a quienes sean miembros del sindicato contratante. Esta cláusula y cualesquiera otras que establezcan privilegios en su
favor, no podrán aplicarse en perjuicio de los trabajadores que no formen parte del sindicato y que ya presten sus servicios en la empresa o establecimiento con anterioridad a la fecha en que el sindicato solicite la celebración o revisión del
contrato colectivo y la inclusión en él de la cláusula de exclusión.”
19
Supreme Court Press Release #385, Inconstitucional, La Cláusula de Exclusión en Los Contratos Colectivos de Trabajo: SCJN, México, D.F., 17 abril 2001. http://www2.scjn.gob.mx/red2/comunicados Type in the number of the release
(385), the date (abril, 2001), and the release title.
20
June 15, 2012 reports of the Freedom of Association Committee of the ILO, paragraph 319.
21
. http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_INSTRUMENT_ID:312280. Mexico has ratified Convention 135.
22
Article 47 (II): “Incurrir el trabajador, durante sus labores, en faltas de probidad u honradez, en actos de violencia, amagos, injurias o malos tratamientos en contra del patrón, sus familiares o del personal directivo o administrativo de la
empresa o establecimiento, o en contra de clientes y proveedores del patrón, salvo que medie provocación o que obre en defensa propia.”
23
http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO:12100:P12100_ILO_CODE:C158
24
Reinstatement is not, and has never been, a mandatory remedial measure in cases of unjust firing in Mexico.
25
http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO:12100:P12100_ILO_CODE:C183. Mexico has not ratified Convention 183.
26
See Guidelines on Sexual Harassment at the Workplace, April 2011. http://www.ilo.org/wcmsp5/groups/public/---asia/---ro-bangkok/---ilo-jakarta/documents/publication/wcms_171329.pdf
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http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C111. Mexico has ratified Convention 111
28
http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO:12100:P12100_ILO_CODE:C100. Mexico has ratified Convention 110
29
http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C095. Convention 95 has been ratified by Mexico.

Mexico Committee, Americas Group, January 2015 | 27