The recent reform – dated April 23, 2021 – to the Federal Labor Law on labor subcontracting brought with it endless doubts and uncertainty for business sectors, service providers, and other institutions to which the law recognizes some type of rights.
This acquires significance because the scheme of providing or making available one’s personnel for the benefit of another person, better known as “Outsourcing,” ranged from the flexible to the illegal if it is considered that the practice of violation of labor rights, social security and fiscal simulation to the detriment of the treasury were constant.
In this regard and as part of public policies in international matters, the federal government designed an unprecedented reform in labor, social security, and fiscal matters to analyze advantages, disadvantages, and continuity of the old outsourcing model.
Thus, this figure is eliminated or, rather, completely prohibited, in order to allow and regulate the subcontracting of specialized services or works that are not part of the corporate purpose or the predominant economic activity of the person requesting it.
Without a doubt, one of the main questions that the various sectors of our country have raised have been the following:
- To whom does this law apply?
- What obligations does each party have?
- How do I avoid a penalty for failing to comply with the regulations on Outsourcing?
To answer the first question, the federal labor law provides for the existence of 2 subjects:
- The Contractor: Natural or Legal Person who performs services and specialized works that bring together elements or factors distinctive from the activity carried out by the contractor, which is supported, among others, by training, certifications, permits or licenses that regulate the activity, equipment, technology, assets, machinery, risk level, average salary range and experience, which provide added value to the beneficiary”.
- The Beneficiary: Natural or Moral Person who requests the service or specialized work that is not part of its corporate purpose or main economic activity”.
As can be seen, this regulation is a bit ambiguous and therefore may include most of the cases of service providers that are currently carried out.
In answer to the second question, it follows that the contractor must:
- Register before STPS portal
- Be aware of your tax and social security obligations
- Inform the IMSS and STPS about the contracts it concludes with its clients for the outsourcing of services or specialized works.
- Verify that the particular services or works requested by the beneficiary are different from their main corporate purpose or economic activity.
While the Beneficiary must:
- Verify that its main corporate purpose or economic activity is not the same as that of the contractor
- Verify that the contractor to whom you are requesting the provision of specialized services and works has the official registration of the STPS.
As noted, the above constitutes a series of requirements that must be met by the parties that are involved in a subcontracting of specialized services or works.
Concerning the third question, both the beneficiary and the contractor must be careful that their corporate purpose and predominant economic activity are not the same, which means that these subjects must review in a particular way with which people they hold this type of activity to determine whether they must modify their bylaws or, if where appropriate, register in the portal of specialized services with the STPS, thus avoiding sanctions provided for in the Federal Labor Law, Social Security Law, Income Tax Law, Value Added Tax Law, to name a few.
Finally, to determine the outsourcing of specialized services or works, the following conditions must be met:
- The contractor is registered with the STPS
- That the contractor does not have the same corporate purpose or main activity of the beneficiary.
- That although the contractor’s workers go to the beneficiary’s home, there is no command-obedience correlation between the latter and the workers.
Although various legal systems contain definitions, concepts, and elements that attempt to clarify the scope of the concept of outsourcing of specialized services or works, the truth is that so far neither the legislators nor the STPS itself has managed to convey the spirit of its reform.
ESPECIALIZED SERVICE IN THE CONDO REGIME
In condominiums, for example, the issue of outsourcing services or specialized works has generated a constant discussion among administrators because this reform means that now the person in charge of the administration of the condominium must take care that the contractor who needs it does not have the same object or the same main economic activity.
It is worth mentioning that while it is true that the issue that concerns us has more impact on the management of the condominium, it is necessary to remember that it is not the only one according to the following:
- Decision: Whose powers are exercised through a general assembly of owners.
- Administration: Whose powers are exercised through an administrator natural or legal person
- Supervision: Whose powers are exercised through a supervisory committee or board of directors according to the state in question.
That said, determining at what point the condominium administrator is required to comply with the provisions of the Federal Labor Law depends largely on the law governing the applicable condominium ownership regime.
For example, some states give legal personality to the condominium regime, but others only regulate a figure that houses a modality to the property and that to exercise their rights and manage their resources require a person – administrator- external
That is to say, if the condominium regime with recognized legal personality requires the services or works equally to those that by statute, regulation, or legislation the administration must do, it would be before a figure prohibited by law.
In the case of the condominium ownership regime that regulates one of its modalities, the external administrator would be obliged to observe the rules on outsourcing.
Although the main theme of the reform is the elimination of the outsourcing of personnel and the permission of the subcontracting of specialized services or works, it is important to review each situation, since it could be confused with the provision of independent services which has a different connotation.
The reform in the field of subcontracting of services or specialized works is transcendental not only because of the series of administrative and legal rules that must be complied with but also because of the implications that its non-observance brings, such as the imposition of fines, not being able to accredit you or deduct taxes, up to the responsibilities that in criminal matters may be configured.
Therefore, prevention, attention, and timely compliance with all these details are critical for condo managers.
Author: Luis Alfonso Licona Ortíz
Published on August 16, 2021
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