Table of Contents
- Mexican Labor Laws
- Federal Labor Law
- International Law
- Implementation of Mexican
- Conciliation and Arbitration Boards
- Procedures of CABs
- Settlement of
- Other Agencies
Mexican Labor Laws
Mexican labor law guaranteeing workers freedom of association and the
right to organize and providing protections against dismissal of workers
because of their exercise of the right to organize is based on Article 123 of
the Political Constitution of the United Mexican States, adopted in 1917.(17) These Constitutional rights are regulated by
Title II and Title VII of the Federal Labor Law (Ley Federal del Trabajo).(18) Mexico has ratified one of the basic
Conventions of the International Labor Organization, Convention 87, which
grants workers the freedom to associate and protects their right to organize.
The legal framework
of Mexican labor law is Article 123 of the Political Constitution of the United
Mexican States. Section XVI of Article 123, which guarantees the right of
workers to organize, states as follows:
Both employers and workers shall have the right to
organize for the defense of their respective interests, by forming unions,
professional associations, etc.
Section XXII of Article 123 provides protections against dismissal
of workers because of their exercise of the right to organize. This Section
states, in part:
An employer who dismisses a worker without justifiable
cause or because the worker has entered an association or union, or for having
taken part in a lawful strike, shall be required, at the election of the
worker, to either fulfill the contract or indemnify him in the amount of three
months' wages. The law shall specify those cases in which the employer may be
exempted from the obligations of fulfilling the contract by payment of an
- Federal Labor Law
Labor Law (FLL) codifies Mexican labor law. Title II, which deals with labor
law applicable to individuals, addresses, inter alia, the dismissal of
workers. Title VII of the FLL deals with collective labor relations.
- Freedom of Association and Right to
Article 354 of the FLL recognizes the freedom of workers and
employers to form associations. Article 357 provides that workers and employers
are free to form unions without prior authorization. Article 358 states that no
one can be forced to join or not to join a union.
- Formation of Unions
356 of the FLL defines a union as "the temporary association of workers or
employers for the study, advancement and defense of their respective
Since no prior authorization is needed to form a union
(Article 357), the only requirements in the FLL regarding the formation of
unions are those dealing with how many workers are needed to form one and who
is eligible for membership.
Article 364 states that the formation of a union
requires twenty workers in active service.
Article 363 states that workers occupying
"positions of trust" may not join unions.
Article 362 provides that only workers older than 14
years of age can join a union.
- Recognition of Unions
to be officially recognized, unions must register with the Secretariat of Labor
and Social Welfare (Secretaría del Trabajo y Previsión Social,
STPS) in instances where the Federal Government has jurisdiction, and with the
local CAB in instances where local jurisdiction applies. Registration requires
the presentation of the following documents: (1) a certified copy of the
minutes of the general meeting at which the union was established; (2) a list
of the names of the members and of their employers; (3) a certified copy of the
by-laws; and (4) a certified copy of the minutes of the meeting at which the
Board of Directors was elected (FLL, Article 365).
Once the required documents are presented to STPS or a CAB,
registration occurs within 60 days unless the registering authority determines
that: (1) the purposes of the union do not coincide with those set out in
Article 356 ("the study, advancement and defense of the....[rights of
workers]"); (2) the union does not have the minimum number of workers
established by Article 364 (20 workers); or (3) the union has not submitted all
of the documents required by Article 365 (FLL, Article 366).
Union by-laws must contain the following: (1) the name of
the union; (2) its address; (3) its objectives; (4) the time period for which
it was established; (5) conditions for membership; (6) obligations and rights
of members; (7) causes and procedures for expulsion; (8) procedures for holding
meetings; (9) procedures for the election of a board of officers; (10) length
of tenure of officers; (11) regulations regarding the management of the assets
of the union; (12) form of payment and amount of union dues; (13) dates for
presentation of financial statements; (14) rules for liquidating union assets;
and (15) other rules approved by the membership (FLL, Article 371).
- Dismissal of Workers
Mexican labor law, employment contracts may be for a specified job or period,
or for an indefinite period; in the absence of express stipulations, the
employment contract shall be for an indefinite period (FLL, Article 35).
Article 46 authorizes a worker or an employer to sever the work
relationship for cause without incurring any further responsibility. Other
articles of the FLL address specific causes whereby a worker may be subject to
dismissal ("rescission") and remedies available to workers who are
dismissed, including severance pay ("indemnification").
- Dismissal for Cause
Article 47 sets out the specific conditions whereby a worker may be dismissed
without further responsibility for the employer:
If the worker, or the union which had proposed or
recommended the worker, deceives the employer with false certificates or
references showing that the employee has ability, competency and faculties that
the worker does not possess. This cause for dismissal shall cease to have
effect thirty days after the worker started rendering his services;
If the worker, during working hours, commits dishonest
or violent acts, makes threats, offends or mistreats the employer, the
employer's family or the officers or administrative personnel of the enterprise
or establishment, unless there is provocation or he acts in self-defense;
If the worker commits any of the offenses listed in the
preceding paragraph against co-workers and, as a result of such actions, the
discipline in the place of employment is altered;
If the worker, outside of working hours, commits any of
the offenses referred to in the preceding paragraphs against the employer, the
employer's family or the officers or administrative personnel, and the offense
is of such serious nature that it makes the work relationship impossible;
If, during the performance of his work or by reason of
it, the worker intentionally causes material damage to the buildings, works,
machinery, instruments, raw materials and other things related to the work;
If the worker causes serious damage of the kind
mentioned in the preceding paragraph, not wilfully but through negligence;
If the worker, through negligence or inexcusable
carelessness, jeopardizes the safety of the establishment or of the persons in
If the worker commits immoral acts in the establishment
or place of employment;
If the worker reveals manufacturing secrets or
confidential matters to the detriment of the enterprise;
If the worker is absent more than three times within a
thirty-day period, without permission from the employer or without reasonable
If the worker disobeys the employer or the employer's
representative, without reasonable cause, in matters related to the work under
If the worker refuses to adopt preventive measures or to
follow the established procedures indicated to avoid accidents or illnesses;
If the worker comes to work in a state of drunkenness or
under the influence of a narcotic or depressant drug, unless there is in the
latter case a medical prescription. Before starting work, the worker shall make
this fact known to the employer and present the prescription signed by the
A final judgment imposing a prison sentence on the
worker, which prevents the worker from fulfilling the employment contract; and
Causes similar to those set forth in the preceding
paragraphs, of equal seriousness and of similar consequences insofar as the
work is concerned.
Employers are required to give notice in writing to the
worker of the date and cause of the dismissal.
Article 48 of the FLL
grants mandatory reinstatement to dismissed workers who hold permanent jobs. It
The worker may, at his election, request from
the Conciliation and Arbitration Board to be reinstated in his job, or to
receive an indemnification equal to three months' salary. If the employer fails
to show the cause for dismissal in the proceedings, the worker shall be
entitled, in addition to whatever the action exercised might have been, to be
paid the salaries accrued from dismissal to the effective date of the award.
According to Article 49, an employer may be exempt from the
obligation to reinstate a worker, provided the appropriate indemnification
pursuant to Article 50 has been paid, in the following cases: (1) when the
worker has been employed for less than one year; (2) when the employer shows
before the CAB that the worker, because of the work performed or the
characteristics of the job, is in direct and permanent contact with the
employer and the CAB considers that a normal relationship is not possible; (3)
when the worker is a confidential employee; (4) when the worker is engaged in
domestic service; and (5) when the worker is engaged in occasional work.
The indemnifications provided by Article 50 are: (1) an
amount equal to salaries for one-half of the period of service rendered if the
employment contract was for a definite period of less than one year; (2) an
amount equal to salary for six months for the first year and for twenty days
for each subsequent year of service if the employment contract exceeded one
year; (3) the salary of twenty days for each year of service rendered if the
employment contract was for an indefinite period; and (4) in addition to the
indemnification referred to above, an amount equal to three months' salary,
plus the salaries accrued from the date of dismissal until the indemnifications
- International Law
to Mexican law, international conventions and agreements entered into by Mexico
become part of Mexican law upon ratification by the Senate. This applies to
Conventions of the International Labor Organization (ILO), provided the
conventions do not contravene the principles embodied in Article 123 of the
Constitution.(19) Article 6 of the FLL states:
The laws and treaties entered into and approved in the
terms of Article 133 of the Constitution, shall be applicable to the employment
relations in all aspects that are beneficial to workers from the effective date
of such law or treaty.
As of June 1, 1993, Mexico had ratified 74 ILO Conventions.(20) In particular, Mexico has ratified Convention
87, "Freedom of Association and Protection of the Right to Organize."
Convention 87 was adopted in 1948 by the International Labor Conference, a
tripartite body composed of government, employers' and workers' delegates from
member States of the ILO. The Mexican Senate's ratification of Convention 87
was published in the Diario Oficial de la Nación on October 16,
The aim of Convention 87 is "the right, freely exercised, of
workers and employers, without distinction, to organise for furthering and
defending their interests."(22) The key
provisions of Convention 87 are:
Workers and employers, without distinction whatsoever, have the
right to establish and to join organizations of their own choosing with a view
to furthering and defending their respective interests.
Such organizations have the right to draw up their own
constitutions and rules, to elect their representatives in full freedom, to
organize their administration and activities and to formulate their programs.
Public authorities shall refrain from any interference which would restrict
this right or impede the lawful exercise of this right.
The organizations shall not be liable to be dissolved or
suspended by administrative authority.
Organizations have the right to establish and join federations
and confederations which shall enjoy the same rights and guarantees. The
Convention also provides for the right to affiliate with international
The acquisition of legal personality by all these organizations
shall not be subject to restrictive conditions.
In exercising the rights provided for in the Convention,
employers and workers and their respective organizations shall respect the law
of the land. The law of the land and the way in which it is applied, however,
shall not impair the guarantees provided for in the Convention.
Implementation of Mexican Labor
Mexican labor law is of the competence of the federal government and
applies throughout the entire nation. Neither the states nor the Federal
District have the power to issue labor legislation.(23) Pursuant to Section XXXI of Article 123 of
the Mexican Political Constitution, implementation of labor law is under the
purview of state authorities in their respective jurisdiction. However, matters
involving work arrangements related to conflicts that affect two or more
states; collective contracts which are declared to be binding in more than one
state; training; occupational safety and health; or the following industries
fall exclusively within the federal jurisdiction:
Metals and steel, including the mining, processing and smelting of
basic minerals, and the production of iron and steel and finished products from
iron and steel;
Automobiles and parts;
Chemicals, including pharmaceuticals and medications;
Cellulose and paper;
Oils and vegetable fats;
Packed, canned or packaged foods;
Bottled or canned beverages;
Wood products, including saw mill products, plywood and particle
Flat glass and glass bottles; and
Tobacco processing and manufacturing.
Federal jurisdiction also applies to matters regarding the following
Those that are under direct or indirect administration by the
Those that operate pursuant to a federal contract or grant and
related industries; and
Those that operate in federal zones or areas under federal
jurisdiction, in territorial waters or within the exclusive economic zone of
- Conciliation and Arbitration Boards
Disputes between labor and management in Mexico are the purview of a system of
Conciliation Boards (Juntas de Conciliación) and Conciliation and
Arbitration Boards (Juntas de Conciliación y Arbitraje). Section XX of
Article 123 of the Mexican Political Constitution states:
Differences or disputes between capital and labor shall
be subject to the decisions of a Conciliation and Arbitration Board, consisting
of an equal number of representatives of workers and employers, with one from
Among the labor-management disputes subject to the auspices of
Conciliation Boards and Conciliation and Arbitration Boards are those related
to freedom of association and dismissal of workers.
Section XXI of Article 123 compels employers to use the CABs to
resolve disputes and to accept awards made by CABs. This Section states:
If an employer refuses to submit his differences to
arbitration or to accept the decision rendered by the Board, the labor contract
shall be considered terminated and he shall be obligated to indemnify the
worker the amount of three months' salary in addition to any liability
resulting from the dispute...
Conciliation Boards have limited scope and are not permitted to sit
as adjudicative bodies. Jurisdiction between local and federal Conciliation
Boards or Conciliation and Arbitration Boards is determined on the basis of
subject matter (see above).
- Federal Conciliation and Arbitration
The Federal Conciliation Boards (Juntas Federales de
Conciliación, FCBs) and Federal Conciliation and Arbitration Boards
(Juntas Federales de Conciliación y Arbitraje, FCABs) are regulated,
respectively, by Chapters X and XII, Title Eleven, of the FLL.
FCBs consist of three members: a representative from
government, appointed by the Secretariat of Labor and Social Welfare, who will
act as President; and a representative each from organized labor and from
employers (FLL, Article 593). In addition to promoting the resolution of labor
disputes, the main duties of the FCBs include receiving claims and forwarding
them to Special Boards or to FCABs; gathering evidence that workers or
employers intend to bring before FCABs; acting as FCABs in instances where
benefits involving less than three months' salary are involved; and assisting
the FCABs in the performance of their duties (FLL, Article 600).
The FCAB consists of representatives from government and from
workers and employers, with the latter representing different sectors of the
economy (FLL, Article 605). The President of the FCAB is appointed by the
President of the Republic (FLL, Article 612). According to Article 604, the
FCAB "shall hear and resolve labor conflicts between workers and
employers, or among workers only, or employers only, which derive from labor
relations or from events closely associated with such relations." The FCAB
may operate as a Committee of the Whole or establish Special Boards to deal
with specific issues.
- Local Conciliation and Arbitration Boards
Local Conciliation Boards (Juntas Locales de Conciliación, LCBs) and
Local Conciliation and Arbitration Board (Juntas Locales de Conciliación
y Arbitraje, LCABs) are regulated, respectively, by Chapters XI and XIII, Title
Eleven, of the FLL.
LCBs operate in each state of the nation, as determined by the
Governor of each state (FLL, Article 601). The functions of LCBs are the same
as those of the Federal Conciliation Boards (FLL, Article 603). Similarly,
LCABs function in each state of the nation to deal with labor conflicts that
are not subject to federal jurisdiction (FLL, Article 621). LCABs are subject
to the same rules, and have the same functions, as the Federal Conciliation and
Arbitration Boards (FLL, Article 623). The President of the LCABs is appointed
by the Governor of each state (FLL, Article 623).
- Procedures of CABs
not intervene in labor disputes unless requested to do so by the complaint of a
plaintiff. Workers seeking the intervention of CABs in complaints against an
employer alleging denial of freedom of association and dismissal without cause
must begin their case by filing a written document with the appropriate CAB
(FLL, Article 871). In addition to laying out the facts of the case, the
petition may be accompanied by supporting evidence (FLL, Article 872). Within
24 hours of receipt of a petition, the Full CAB or a Special CAB will announce
the date and time for holding a conciliation hearing--which must be within 15
days of the filing of the petition--and notify all of the parties at least 10
days in advance of its occurrence; the CAB will also make available a copy of
the petition to the defendant (FLL, Article 873).
Hearings before CABs consist of three stages: (1) conciliation; (2)
arguments; and (3) presentation of evidence. All three stages take place
consecutively, typically within the same business day.
The strong preference
of the drafters of the FLL for conciliation and negotiated resolution of
disputes is evident in this stage of the CAB hearings, which are conducted by
Conciliation Boards (FLL, Article 876):
parties are required to appear in person, "without
attorneys, advisers, or proxies";
the Board will promote dialogue between the parties and
encourage them to reach a settlement;
if the parties reach an agreement, the conflict is deemed to
be terminated; after approved by the Board, the agreement shall have the legal
force of an award; and
the parties are given the opportunity to request the
suspension of the hearing in order to work out a settlement; the Board can
grant the suspension only once and for up to eight days.
Only if these efforts at conciliation are unsuccessful will the
hearing move into the next stage. Failure of one of the parties to attend the
conciliation stage is deemed as an unwillingness to reach an agreement and the
case is moved to the next stage.
Upon being notified by the
Conciliation Board that its efforts to reach an agreement have been
unsuccessful and receiving documentation to this effect, the CAB summons the
parties to a hearing to present their arguments (FLL, Article 877). At the
hearing, the President of the CAB again urges the two parties to settle their
differences; if this call for conciliation is unsuccessful, the two parties
proceed to make their arguments (FLL, Article 878):
the plaintiff has an opportunity to present his or her case,
amending it as appropriate from the time the original complaint was filed;
the defendant is similarly given the opportunity to reply to
the plaintiff's arguments either orally or in writing; the defendant is
instructed to address each of the allegations made by the plaintiff; and
parties have a brief opportunity to cross-examine each
The conclusion of the arguments stage leads into the
presentation of evidence stage. If the parties concur on the facts of the case
and the only differences relate to matters of law, the process is ended without
going through the presentation of evidence stage.
The arguments stage takes place even if one of the two parties
is not in attendance. If the plaintiff is absent, his or her arguments are
limited to those that were presented in the original complaint. Failure of the
defendant to appear is construed as acceptance of the facts contained in the
plaintiff's complaint, although "without prejudice to showing during the
presentation of evidence stage that the plaintiff was not a worker or an
employer, that there was no dismissal, or that the facts alleged in the
complaint are untrue" (FLL, Article 879).
- Presentation of Evidence
The last stage in the hearing conducted by the CAB is the presentation of
evidence. The plaintiff is first allowed the opportunity to present evidence
supporting his or her complaint; the defendant is also allowed an opportunity
to introduce evidence rebutting that presented by the plaintiff.
Counter-arguments can occur (FLL, Article 880). Immediately following, the CAB
rules on which evidence is admissible, the CAB hears the evidence and issues a
ruling (laudo or award) (FLL, Article 889).
Decisions of CABs are final and are fully enforceable by them.
The Presidents of the CABs act as enforcement authorities of CAB decisions and
as such decide which are the best enforcement measures to ensure execution of
their decisions (FLL, Article 940). Under some circumstances, the President of
a CAB has the authority to garnish property of a defendant to guarantee payment
of an award.
The constitutionality of CAB decisions is subject to review by
the Federal District Courts, Federal Courts of Appeal, and the Mexican Supreme
Court. The procedure for appealing an award requires that the appellant's brief
be submitted to be CAB in question, with copies for members of the CAB and for
each party involved in the conflict. The CAB, in turn, sends copies to the
Federal Court of Appeals. If the Court considers that the plaintiff-worker will
not be able to support himself or his family needs while the appeal is
proceeding, the defendant may be ordered to pay the plaintiff whatever the
appellate court considers necessary as support during the appeal process. When
the appellant is from labor, the Court of Appeals is bound by Article 76 of the
Law of Appeals (Ley de Amparo) and must correct deficiencies in the appellants'
brief including a review of the record and even possibly rewrite the
- Settlement of Disputes
The thrust of Mexico's system of labor-management relations is to seek
resolution of disputes through conciliation. As has been described above, the
system favors negotiated settlements between the parties rather than protracted
procedures before CABs. Over the period from November 1, 1992 to October 31,
1993, 67,112 out of 72,557, or over 92 percent, of complaints accepted by FCABs
were resolved through conciliation.(25)
- Role of CABs in Settlements
principle, CABs do not intervene in a dispute unless requested to do so by a
complaining party. The main responsibility of CABs in negotiated settlements
regarding dismissals is to ensure that the proper severance is paid to the
worker. In order for a settlement to be valid, it must be approved by a CAB.
The right of workers to severance payments cannot be renounced.
Article 33 of the FLL states:
A workers' waiver of accrued salaries,
indemnifications, and other benefits derived from services rendered is null and
void, whatever its form or designation may be.
In order to be valid, every agreement or settlement of
account shall be in writing and shall contain a detailed statement of the facts
which give rise to it and of the rights included therein. It shall be ratified
before the Conciliation and Arbitration Board, which shall approve it, provided
that it does not contain an waiver of the rights of the workers.
Thus, the Presidents of the CABs are required to monitor
severance payments, ensuring that the rights of workers are not being voided
and workers receive, directly, the full amount of the severance payments that
is due them. Article 949 of the FLL directs the President of the CAB to ensure
that severance payments are made directly to the worker entitled to the
- Settlements in Dismissal
In 1993, the FCABs (including special boards in the Federal
District) handled 17,044 individual complaints, of which 8,068 (47 percent)
involved charges of unjustified dismissal.(26)
According to statistics provided by the Mexican NAO, the vast majority of
disputes involving dismissal for cause that are resolved in favor of workers
are settled through the payment of severance rather than through reinstatement.
Specifically, the Federal Conciliation and Arbitration Boards of the Federal
District ruled in favor of workers in 2,220 cases of dismissal for cause during
the 17-month period from January 1993 through May 1994. Eighty-five percent of
the workers opted for severance pay, while 15 percent chose to be reinstated.
- Other Agencies
In addition to
the CBs and CABs, other agencies of the Government of Mexico have
responsibility for enforcing aspects of labor law. These agencies, and the area
of responsibility of each, are:(27)
Secretaría del Trabajo y Previsión
Social (Secretariat of Labor and Social Welfare, STPS)--Responsible
for the application of Article 123 of the Constitution (including minimum wage,
right to strike, etc.) through the FLL and its regulations. Supervises, from an
administrative standpoint, the FCABs, the Labor Inspection Department, and the
Office of the Labor Public Defenders.
Secretaría de Educación (Secretariat
of Education)--Responsible for enforcing laws and regulations related to
employer obligations to train workers and, together with STPS, for training
Secretaría de Hacienda y Crédito
Público (Secretariat of Finance and Public Credit)--Responsible
for the administration of the mandatory profit sharing provisions of the FLL.
Procuraduría de la Defensa del Trabajo
(Office of the Labor Public Defenders)--Responsible for providing workers with
counsel before any authority in matters related to the enforcement of labor law
and regulations. They file for ordinary or special proceedings for the defense
of individual workers or unions, propose to interested parties ways to solve
disputes, and formalize settlements between workers and management.
Departamento de Inspección del Trabajo
(Labor Inspection Department)--Responsible for overseeing compliance with labor
laws and regulations, including making workers and management aware of the laws
and regulations, and giving notice regarding violations of labor law. In
particular, the Labor Inspection Department is responsible for compliance with
worker safety and health laws and regulations.
Servicio Nacional de Empleo, Capacitación y
Adiestramiento (National Employment and Training Service)--
Responsible for analyzing labor markets, encouraging the employment of workers,
and promoting and supervising the training of the workforce.
Comisión Nacional de Salarios
Mínimos (National Minimum Salaries Commission)--Responsible for
setting minimum salaries for different occupations and areas of the country.
Comisión Nacional para la Participación de
los Trabajadores en las Utilidades de las Empresas (National
Commission for the Distribution of Corporation Net Profits to
Workers)--Responsible for overseeing the allocation of net profits of
corporations to workers, as required by the FLL.
Jurado de Responsabilidades (Jury of
Responsibilities)--Responsible for investigating and sanctioning members of the
CABs for inefficiency or wrongdoing.
State Secretariats of Labor carry out the functions of the STPS for
matters under state jurisdiction.
17. "Artículo 123 Constitucional,"
reprinted in Secretaría del Trabajo y Previsión Social, Ley
Federal del Trabajo, 9th Edition (México, 1992), pp. 9-20.
18. The first Federal Labor Law took effect in 1931; it
was modified numerous times over a 30-year period and superseded by a new
Federal Labor Law in 1970. The latter legislation has also been modified
frequently. The most recent major revision of the FLL was done in 1980.
19. Néstor de Buen L., Derecho del
Trabajo, Seventh Edition (México: Editorial Porrúa, 1989),
Volume 1, p. 416.
20. International Labour Conference, 80th Session,
1993, Lists of Ratifications by Convention and by country (as at 31 December
1992), Report III (Geneva: International Labour Office, 1993), p. 241 and
addendum updating the information through June 1, 1993.
21. Néstor de Buen L., Derecho del
Trabajo, Seventh Edition (México: Editorial Porrúa, 1989),
Volume 1, p. 418.
22. International Labour Office, Summaries of
International Labour Standards, Second edition (Geneva: International
Labour Office, 1991), p. 5.
23. Francisco Breña Garduño, Mexican
Labor Law Summary (México City: Breña y Asociados, 1991), p.
24. Labor Law Enforcement in Mexico, op.
cit., pp. 31-32.
25. Secretaría del Trabajo y Previsión
Social, Informe de Labores, 1992-1993 (Mexico, STPS, 1993), p. 63.
26. Questions on Labor Law Enforcement in
Mexico, op. cit., p. 26, based on information from STPS.
27. Labor Law Enforcement in Mexico, op.
cit., pp. 22-23; and Questions on Labor Law Enforcement in
Mexico, op. cit., pp. 26-29.