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Labour and Employment Comparative Guide

Author:Mr Luis E. Díaz Mirón S.
Profession:Díaz Mirón Y Asociados, S.C.
 
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1 Legal framework

1.1 Are there statutory sources of labour and employment law?

Yes. Article 123 of the Mexican Constitution outlines general principles of employment law in two main sections: one which applies to employees in general and another which applies to federal government employees. Article 123 also indicates which industries are considered to fall within the federal jurisdiction; all other industries not specifically mentioned are considered to fall within the local jurisdiction.

The Federal Labour Law is the statutory instrument through which these constitutional principles are regulated for employees in general. Although it is a federal law, it is applied by local (state) authorities regarding industry segments that are not reserved to the federal jurisdiction.

The Federal Labour Law regulates the rights and obligations of employees and employers. It also regulates procedural terms and conditions for employment disputes and governs the organisation of conciliation and arbitration boards, which are the administrative entities that resolve employment disputes.

In 2017 a constitutional amendment to Article 123 did away with conciliation and arbitration boards as an administrative entity with jurisdictional capacity, instead creating labour tribunals within the judicial branch to administer and oversee labour and employment disputes. However, the legislative branch is still working on reforms to the Federal Labour Law to accommodate this constitutional amendment; so for the time being the Federal Labour Law as it stands, and the conciliation and arbitration boards, remain in effect.

Federal and local government employees are further subject to specific laws that regulate their labour relationships with the federal and local governments.

1.2 Is there a contractual system that operates in parallel, or in addition to, the statutory sources?

No. The Federal Labour Law sets out certain parameters for determining whether a labour relationship exists, regardless of the existence of a written agreement or even where a written agreement is intended to avoid the creation of a labour relationship. As long as there is subordination between two parties, with an obligation to obey or carry out orders, economic dependence and recurring payment for such services, a labour relationship is presumed, even if there is no written agreement or if there is an agreement that purports to expressly exclude a labour relationship.

1.3 Are employment contracts commonly used at all levels? If so, what types of contracts are used and how are they created? Must they be in writing must they include specific information? Are implied clauses allowed?

Yes. A contract is always presumed at any level of employment when there is a labour relationship. Article 25 of the Federal Labour Law provides a list of basic information that should be included within an employment contract. The general rule is that all contracts are of an indefinite duration; although temporary employment is allowed where the nature of the employment justifies a time constraint or where another employee is temporarily replaced. Contracts may also be time limited where they are associated with a specific project with a defined termination date.

2 Employment rights and representations

2.1 What, if any, are the rights to parental leave, at either a national or local level?

Fathers have a right to five days' paid leave from the date of delivery or adoption.

Mothers have a right to six weeks' pre-natal paid leave prior to the expected delivery...

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