The Judicial Branch orders the IMSS to pension the family of an uninsured worker

A federal court issued a resolution in which the social security as a human right above affiliation to an institution. In this way, he protected the family of a worker, who worked for a company that breached his obligation and did not register him with the Mexican Institute of Social Security (IMSS). Now, the wife and children of that man will be able to access a pension for widowhood and orphanhood, respectively.

The thesis formulated is constitutional, but isolated. However, it is one of the first antecedents established on the subject. The institute shall retire the family debt and will have to charge the employer for the expenses incurred for it.

According to the document published in the Federal Judicial Weekly, after the death of her husband, her partner went to a conciliation and arbitration meeting to demand that the IMSS grant her and her children a pension. “As arguments for their petition, they pointed out that the deceased had the quality of worker when he lost his life, which is why he should enjoy the The right to social security in terms of the Social Security Law ”.

The IMSS responded that said claim lacked provenance, since “at the time the worker died, it was not registered in the mandatory regime and the period of conservation of rights had expired ”. The board agreed with the institute, but the woman then decided to go to another instance and filed a direct amparo lawsuit.

The case reached the First Collegiate Court in Civil and Labor Matters of the Seventeenth Circuit and was referred to Judge María del Carmen Cordero Martínez. The judge’s resolution, supported by her other two colleagues, indicates that the social Security It is a human right and its fulfillment “is not left to the will of the parties.”

In its ruling, the Judicial Branch ordered the IMSS to subrogate and grant the benefits that correspond to the worker’s family. It also mandated that social security must “determine the constituent capitals in charge of the ignored employer ”.

The fact that a person is not registered in the mandatory regime, “does not imply that they cannot enjoy the social Security for having precluded the period of conservation of rights “. By having the character of worker, said the magistrate, “must enjoy such benefit.” The IMSS has oversight powers, so it was able to foresee whether the company was not complying with its employer obligations, he said.

What are the constituent capitals?

The Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights recognize social security as a human right. And Article 1 of the Constitution states that in Mexico “all people will enjoy the human rights” established in the Magna Carta “and in the international treaties to which the Mexican State is a party.”

Judge María del Carmen Cordero pointed out that “the obligations derived from the social Security They are not left to the will of the parties, nor are they negotiable, and it is the obligation of the State to ensure their observance, in accordance with the third paragraph of Article 1. of the Constitution ”.

That part of the ordinance indicates: “All authorities, within the scope of their competences, have the obligation to promote, respect, protect and guarantee the human rights in accordance with the principles of universality, interdependence, indivisibility and progressivity. Consequently, the State must prevent, investigate, punish and repair human rights violations, in the terms established by law ”.

Another argument of the judge was that “in articles 84, 96 and 181 of the Social Security Law (LSS) repealed and 77, 88 and 149 of the current one, it is noted that if an employer fails to comply with its obligation to register a worker in the mandatory regime and his death occurs, the aforementioned institute must subrogate and grant the benefits that correspond to his family, while the employer is obliged to find out the constituent capitals respective ”.

The ruling says that the IMSS must be subrogated, that is, substitute the obligations that someone else should have assumed and give the worker’s family a pension. It also indicates that it must “determine the constituent capital in charge of the ignored employer.”

The constituent capital It is the money that the IMSS charges a company to cover the cost of benefits to workers, or their families, when it did not register them or did so, but with a lower salary than what it was actually paid.

According to article 79 of the LSS, between the performance That the institute can collect from the non-compliant employer are the global compensation in substitution of the pension, as well as the current value of the pension and funeral expenses.

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