The outsourcing reform It is about to expire one year. Changes to the regulatory framework have implied adaptation of processes and new tasks for companies, but along the way of implementation, organizations have detected some challenges, such as confusion around what is considered to make their own workers available for the benefit of the client, the limit of joint and several liability or excessive use of the Repse to sign contracts with suppliers, among other challenges.
From the point of view of Manuel García Garrido, partner of the Ibañez Parkman firm, the prohibition of labor subcontracting and the new rules for outsourcing specialized services opened the door to various interpretations, which has made the daily operation of companies more complex.
“In terms of article 12 and 13 of the Federal Labor Lawthere is a great possibility of interpretations of the legal provisions and this at the court level becomes very serious”, he explained during a webinar organized by the Mexican Association in Human Resources Management (Amedirh).
In this sense, the first challenge that companies have found in practice is an excessive use of the Registry of Providers of Specialized Services or Specialized Works (Repse) due to the lack of clarity in what is understood as making their own workers available for the benefit of another company, a criterion that was established with the subcontracting reform to determine whether or not it is the outsourcing of a service.
“We started with a complicated problem because Repses began to be requested indiscriminately, we began to ask almost any Service provider have Repse. Under this logic, I understand that the Finance, Tax or accountant, concerned to think that he could put the deductibility of his bills at risk, he began to ask for the Repses, “said the specialist.
However, the excessive use of the Repse due to the demands of companies with their suppliers brings with it labor risks for contractors. Another challenge that companies have encountered is the limit of joint and several liability that the client has with the workers of the specialized service provider in a labor lawsuit.
“How do I answer a lawsuit, it becomes difficult. It is a subject of previous work where I as a user have to discern, what type of contract do I have with the provider? Does Repse exist or not? Is there really availability of workers or not? And, the most important thing and until now little seen: Was I supervising that this provider complied with its Laboral obligations in terms of what the law states?”, questioned the lawyer.
But in the hypothetical case that a company hires a specialized service and halfway through it detects that its supplier has breaches with its workers, although technically the contract can be terminated, what happens if those collaborators sue the employer and the employer does not have to cover Debt? In such a situation, the contractor would face a lawsuit against workers who have been in service for more than 15 years, but who were only providing the service for a few months with him. “The law does not tell me that the joint liability is limited, it only tells me that I am jointly and severally liable”.
From the perspective of the specialist, during the implementation of the outsourcing reformthe companies have also had little clarity to determine at what point the supplier is considered to be making its workers available to the contracting party.
“Legally speaking, for the existence of the assumption of subcontracting we must always be on the assumption that personnel are made available or provided for the benefit of someone else. The problem is that article 12 refers to it, the issue is that it does not define it and that is the essence of the problem”.
New tasks for companies
The subcontracting reform came into force in April last year and its first impact was the prohibition of outsourcing based on staff supply, eliminating the possibility of signing new personnel subcontracting contracts. In addition, the organizations had a few months to adapt to the new rules for outsourcing specialized services.
Since then, companies have new tasks to minimize risks, among them, carrying out a review process of their established corporate objects and constantly supervising that their Service providers meet their tax and labor obligations.
“There is also the issue of the corporate purpose. This has been appalling in practice because the social object, due to bad practice, became a description of activities as long as Lent. We want to put from selling pozole on Sundays, to giving advice, making spaceships, designing and building a kindergarten, and we had everything in the corporate purpose, “said Manuel García.
The kilometric social objects were born largely because the authorities did not allow participation in public or private tendersbecause the corporate purpose of the company did not refer to participation in these public tenders, he indicated.
In this sense, the specialist recommended that companies constantly review their corporate purpose and define the scope that it will have in order to avoid risks. With the outsourcing reforma new criterion for contracting specialized services is that companies contract activities that are not part of their corporate purpose and predominant economic activity.
Meanwhile, García Garrido explained that among the new tasks that companies have with their suppliers is the periodic supervision of contractors. “You have to monitor the contracts, review the billing concepts.” In addition, they have the obligation to monitor that suppliers comply with their obligations; It is best to do it every three months.
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