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Employment & Labour Law 2013
A practical cross-border insight into employment and labour law
3rd Edition
The International Comparative Legal Guide to:
Abdón Pedrajas & Molero
Allen & Overy LLP
Anderson Mōri & Tomotsune
Barrera, Siqueiros y Torres Landa, S.C.
Bener Law Office
Boga & Associates
Caiado Guerreiro & Associados
Cárdenas & Cárdenas Abogados
CSB Advocates
Debarliev, Dameski & Kelesoska Attorneys at Law
Eduardo Vásquez Silva & Compañía, Abogados
El-Borai & Partners
Dittmar & Indrenius
Funes de Rioja & Asociados
Grette
Hogan Lovells
Homburger
Ikeyi & Arifayan
KGDI Law Firm
Kochhar & Co.
Koep & Partners
Latournerie Wolfrom & Associés
MNKS
Ogletree Deakins
Pachiu & Associates
Papacharalambous & Angelides LLC
Piper Alderman
Randl Partners
Salans LLP
Shook, Hardy & Bacon L.L.P.
Stikeman Elliott LLP
Toffoletto De Luca Tamajo e Soci
Published by Global Legal Group, with contributions from:
www.ICLG.co.uk
Disclaimer
This publication is for general information purposes only. It does not purport to provide comprehensive full legal or other advice.
Global Legal Group Ltd. and the contributors accept no responsibility for losses that may arise from reliance upon information contained in this publication.
This publication is intended to give an indication of legal issues upon which you may need advice. Full legal advice should be taken from a qualified
professional when dealing with specific situations.
Further copies of this book and others in the series can be ordered from the publisher. Please call +44 20 7367 0720
Contributing Editors
Elizabeth Slattery & Jo
Broadbent, Hogan Lovells
Account Managers
Beth Bassett, Brigitte
Descacq, Dror Levy, Maria
Lopez, Florjan Osmani,
Oliver Smith, Rory Smith
Sales Support Manager
Toni Wyatt
Sub-Editors
Beatriz Arroyo
Fiona Canning
Editor
Suzie Kidd
Senior Editor
Penny Smale
Group Consulting Editor
Alan Falach
Group Publisher
Richard Firth
Published by
Global Legal Group Ltd.
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London SE1 3PL, UK
Tel: +44 20 7367 0720
Fax: +44 20 7407 5255
Email: info@glgroup.co.uk
URL: www.glgroup.co.uk
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Printed by
Ashford Colour Press Ltd.
March 2013
Copyright © 2013
Global Legal Group Ltd.
All rights reserved
No photocopying
ISBN 978-1-908070-53-1
ISSN 2045-9653
Strategic Partners
The International Comparative Legal Guide to: Employment & Labour Law 2013
General Chapters:
1 A Better Place to do Business? Employment Law Reform in the UK - Elizabeth Slattery & Jo
Broadbent, Hogan Lovells 1
2 High-Stakes EEOC Class Action Litigation in America - William C. Martucci & Kristen A. Page,
Shook, Hardy & Bacon L.L.P. 6
3 Engaging Independent Contractors for Multinational Organisations - Carson Burnham & Bonnie
Puckett, Ogletree Deakins 9
Country Question and Answer Chapters:
4 Albania Boga & Associates: Renata Leka & Emirjon Marku 16
5 Argentina Funes de Rioja & Asociados: Ignacio Funes de Rioja 23
6 Australia Piper Alderman: David Ey & Sharlene Wellard 30
7 Belgium Allen & Overy LLP: Pieter De Koster & Inge Vanderreken 37
8 Canada Stikeman Elliott LLP: Patrick L. Benaroche & Hélène Bussières 44
9 Chile Eduardo Vásquez Silva & Compañía, Abogados: Eduardo Vásquez Silva
& Pablo Concha Hermosilla 51
10 China Salans LLP: Dr. Iris Duchetsmann & Cynthia Zheng 56
11 Colombia Cárdenas & Cárdenas Abogados: Lorena Arámbula & Juanita Vera 63
12 Cyprus Papacharalambous & Angelides LLC: Loizos Papacharalambous
& Nataly Papandreou 68
13 Czech Republic Randl Partners: Nataša Randlová & Romana Náhlíková Kaletová 75
14 Egypt El-Borai & Partners: Dr. Ahmed El Borai & Dr. Ramy El Borai 82
15 Finland Dittmar & Indrenius: Seppo Havia & Jessica Brander 88
16 France Latournerie Wolfrom & Associés: Sarah-Jane Mirou 96
17 Germany Allen & Overy LLP: Dr. Hans-Peter Löw 103
18 Greece KGDI Law Firm: Effie Mitsopoulou & Ioanna Kyriazi 110
19 India Kochhar & Co.: Manishi Pathak & Poonam Das 118
20 Italy Toffoletto De Luca Tamajo e Soci: Franco Toffoletto & Valeria Morosini 125
21 Japan Anderson Mōri & Tomotsune: Nobuhito Sawasaki & Sayaka Ohashi 132
22 Kosovo Boga & Associates: Sokol Elmazaj & Besarta Kllokoqi 139
23 Luxembourg MNKS: Marielle Stevenot & Sabrina Alvaro 145
24 Macedonia Debarliev, Dameski & Kelesoska Attorneys at Law: Emilija Kelesoska
Sholjakovska & Elena Miceva 153
25 Malta CSB Advocates: Doran Magri Demajo & Ann Bugeja 160
26 Mexico Barrera, Siqueiros y Torres Landa, S.C.: Hugo Hernández-Ojeda Alvirez
& Luis Ricardo Ruiz Gutiérrez 168
27 Namibia Koep & Partners: Hugo Meyer van den Berg & Stephen Vlieghe 174
28 Nigeria Ikeyi & Arifayan: Nduka Ikeyi & Sam Orji 181
29 Norway Grette: Johan Hveding & Jens Kristian Johansen 187
30 Portugal Caiado Guerreiro & Associados: Ricardo Rodrigues Lopes
& David Coimbra de Paula 194
31 Romania Pachiu & Associates: Mihaela Cracea & Corina Radu 200
32 Spain Abdón Pedrajas & Molero: Sonia Cortés & Jaime Fernández Rodríguez 208
33 Switzerland Homburger: Dr. Balz Gross & Dr. Roger Zuber 216
34 Turkey Bener Law Office: Maria Celebi & Batuhan Sahmay 222
35 United Kingdom Hogan Lovells: Elizabeth Slattery & Jo Broadbent 228
36 USA Shook, Hardy & Bacon L.L.P.: William C. Martucci & Carrie A. McAtee 234
Chapter 26
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Barrera, Siqueiros y Torres Landa, S.C.
Mexico
1 Terms and Conditions of Employment
1.1 What are the main sources of employment law?
The main sources of employment law are: (i) constitutional rights;
(ii) international treaties approved by the Mexican Senate; (iii)
precedents of the Supreme Court of Justice (jurisprudence); (iv)
general rules of law; (v) tradition; and (vi) general rules of fairness.
1.2 What types of worker are protected by employment law?
How are different types of worker distinguished?
The Mexican Federal Labour Law (MFLL) protects all the
individuals involved in an employment relationship. The MFLL
considers three different types of workers/employees: (i) unionised
workers; (ii) non-unionised workers; and (iii) entrust employees.
1.3 Do contracts of employment have to be in writing? If not,
do employees have to be provided with specific
information in writing?
According to the MFLL, employment contracts must be
documented in writing; otherwise, in case of litigation, the
employer is obligated to evidence the working conditions.
1.4 Are any terms implied into contracts of employment?
Employment agreements could be executed for a fixed time,
specific task, initial training, specific season or indefinite time.
Employment agreements must contain: (i) information of the
parties; (ii) term of the employment; (iii) services to be rendered by
the employee; (iv) place in which the services will be rendered; (v)
salary information (i.e., amount, terms to be paid, payment day,
etc.); (vi) training references; (vii) holidays; and (viii) any other
working condition agreed to by the parties.
1.5 Are any minimum employment terms and conditions set
down by law that employers have to observe?
The minimum employment rights are: (i) vacation: six days for the
first year of services, eight days for the second year of services, ten
days for the third year of service, after that, vacation days are
increased by two days every five years; (ii) vacation bonus: 25 per
cent of the salaries related to vacation days; (iii) 15 days of salary
as Christmas bonus; (iv) maximum of 48 hours as weekly work
shift; (v) a rest day or day off per week; (vi) possibility to be part of
the profit sharing; and (vii) minimum wage (currently the daily
minimum wage in Mexico City is $64.76).
1.6 To what extent are terms and conditions of employment
agreed through collective bargaining? Does bargaining
usually take place at company or industry level?
The employer and the trade union are able to agree on any terms and
conditions of employment through collective bargaining
agreements (i.e. benefits, compensation, work shifts, training,
positions, etc.) as long as the agreement complies with the
minimum mandatory rights and benefits granted by the MFLL, does
not contain provisions that contradicts such law and is filed before
the Labour Court.
2 Employee Representation and Industrial
Relations
2.1 What are the rules relating to trade union recognition?
According to the MFLL, unions have the right to call a strike
against an employer in order to force the execution of a collective
bargaining agreement (CBA), regardless of whether the union
actually represents the majority of the employees. Due to the
aforementioned, employers that do not have a CBA executed and
duly registered before the Labour Court may face several calls to
strike. It is mandatory for the Labour Court to reject any calls to
strike of a trade union other than that with which the employer has
previously executed a collective bargaining agreement duly
registered before such authority.
Labour Courts must reject any call to strike of a trade union other than
that which the employer has previously executed a CBA duly
registered; however, a different trade union does have the right to file
a “Union Certification” procedure with the Labour Board. This
procedure, which consists in such second union arguing that it, rather
than the union with which the Company has executed the registered
CBA, is the employees’organisation that represents the actual interests
of the majority of the workers in the company. In case the second trade
union is able to prove that it is the organisation that represents CBA,
and as such, will have all the rights and duties conferred upon the trade
union, including the right to call to strike.
2.2 What rights do trade unions have?
According to the MFLL, trade unions have several rights, such as:
prepare their own by-laws and regulations; elect their
Luis Ricardo Ruiz Gutiérrez
Hugo Hernández-Ojeda Alvirez
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Barrera, Siqueiros y Torres Landa, S.C. Mexico
representatives; and organise their management and administration,
as well as their activities and their action programmes. In addition,
trade unions may also file a call to strike to an employer in order to
enforce the execution of a CBA, right to object the information filed
by the employer to the Treasury Department in connection to profit
sharing, request the employer to withhold the employees’
contributions for the trade union agreed on the CBA, participate on
the preparation of the company’s training programmes, file a union
certification procedure when they represent the majority of the
employees of an employer, and execute the CBA, among others.
2.3 Are there any rules governing a trade union’s right to take
industrial action?
The MFLL recognises strikes as a temporary suspension of the
work performed by a trade union of workers. The MFFL contains
the applicable rules for strikes and its procedure. The notice for
strike should be filed by the trade union before the competent
Labour Court in order to accomplish one of the specific objectives
mentioned on the MFLL (review the CBA or law collective
bargaining agreement, obtain a balance between the employees’and
the employer’s rights, force the execution of a collective bargaining
agreement or law collective bargaining agreement, secure the
compliance to a breach of the collective bargaining agreement,
request the compliance to obligations related to profit sharing, and
support another strike that shares any of the goals listed herein).
The majority of the employees should perform the strike, otherwise
after the strike initiates; the employer may file a procedure
requesting the inexistence of the strike.
Except for forcing the execution of a CBA, only the trade union in
charge of the CBA may call for a strike or give notice of the strike.
It should give notice of the strike to the employer, including a list
of its demands, the objective of the strike, and the exact date and
time when work activities will be suspended.
Once a strike notice has been given to the employer, any, and all,
action against the employer’s assets should be suspended.
The Labour Union also should file a copy of the strike notice before
the Labour Court at least six days prior to the strike in the case of
private companies, and at least ten days prior to the strike in the
case of public services. Within the forty-eight hours following
receipt of notice, the employer should file a written answer with the
Court. The Court will then conduct a conciliation hearing.
The employees should appear at the conciliation hearing to proceed
with the strike. The employer also should appear; otherwise the
strike notice remains in full force and effect. This pre-strike period
may be extended at the request of the labour union, but the strike
will take place if no settlement is reached during this stage.
During a strike, the employees should bring any ships, aircraft,
trains, buses, or other means of transportation en route to their last
scheduled destinations. For strikes affecting hospitals, clinics, and
similar establishments, patients should continue to receive care
until transferred to another location.
A minimum number of employees, as determined by the Court, also
should continue working in activities that would cause severe
problems or compromise the safety or well-being of the workplace,
machinery, equipment, or raw materials, or the resumption of
suspended business activities.
The Court may refuse to approve a strike if it fails to meet the
requirements in the MFFL. The employees should then return to
work within twenty-four hours.
It is illegal for employees to strike in a number of cases, such as
when a majority of the striking employees engage in violent acts
against the employer or his property, or where the employees work
in government establishments or shops during wartime. If the
Court declares a strike illegal, the strikers’ employment
relationships are automatically terminated.
2.4 Are employers required to set up works councils? If so,
what are the main rights and responsibilities of such
bodies? How are works council representatives
chosen/appointed?
There are no work councils considered by the MFLL.
2.5 In what circumstances will a works council have co-
determination rights, so that an employer is unable to
proceed until it has obtained works council agreement to
proposals?
This is not applicable.
2.6 How do the rights of trade unions and works councils
interact?
This is not applicable.
2.7 Are employees entitled to representation at board level?
This is not applicable.
3 Discrimination
3.1 Are employees protected against discrimination? If so, on
what grounds is discrimination prohibited?
The MFLL prohibited any kind of discrimination practice. All
individuals involved in an employment relationship are protected
against discrimination on the grounds of: race; nationality; sex
preferences; immigration condition; religion; civil status; social
condition; age; gender; and/or disability.
3.2 What types of discrimination are unlawful and in what
circumstances?
Any kind of discrimination is unlawful. According to MFLL
discrimination practices are prohibited from the hiring process.
3.3 Are there any defences to a discrimination claim?
In case of a discrimination action claim, the employer must
evidence that no discriminatory practice or policy are applicable or
occurred; otherwise, a fine and other sanctions could be imposed on
the employer.
3.4 How do employees enforce their discrimination rights?
Can employers settle claims before or after they are
initiated?
Employees affected by discriminatory practices or policies could
file or claim before the Labour Court or the National Board to
Prevent Discrimination.
Employers can settle claims before litigation is initiated or even
when litigation takes place.
Mexico
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3.5 What remedies are available to employees in successful
discrimination claims?
Remedies could be anything from a fine award of US$30,000.00 to
a severance payment.
3.6 Do “atypical” workers (such as those working part-time,
on a fixed-term contract or as a temporary agency
worker) have any additional protection?
No, there is no additional protection for “atypical” workers.
4 Maternity and Family Leave Rights
4.1 How long does maternity leave last?
According to MFLL, maternity leave will take 12 weeks (six weeks
before the child is born and six weeks after). The period could be
negotiated by the employee in agreement with the employer.
4.2 What rights, including rights to pay and benefits, does a
woman have during maternity leave?
During maternity leave women are entitled to the benefits that they
would normally receive. In addition, the following rules are
applicable:
Pregnant women may not work under hazardous conditions,
perform industrial tasks during the night or during
extraordinary hours or during sanitary contingencies. Their
salary, benefits and rights should not be affected.
Statutory maternity leave may be extended as necessary if
work is not possible because of the pregnancy or the delivery
of the child.
During the nursing period, the new mother is entitled to two
additional 30 minute rest periods per day to feed the child in
an adequate and hygienic place set aside by the employer; if
this is not possible the parties may agree to reduce her work
shift one hour.
When returning from maternity leave, the employee is
entitled to return to her employment, provided that not more
than one year has passed since the date of delivery.
Maternity leave does not affect longevity of service.
The employer should have enough seats available for
pregnant women.
During maternity leave, the Mexican Social Security
Institute will pay the working mother 100 per cent over her
daily salary of social security contribution. If the maternity
leave period is extended, she is entitled to 50 per cent of the
daily salary of social security contribution for a period of up
to 60 days.
4.3 What rights does a woman have upon her return to work
from maternity leave?
The rights of women rights after maternity leave are: (i) to be
considered as a regular employee; and (ii) two daily breaks of 30
minutes during the following six months as a lactation period.
4.4 Do fathers have the right to take paternity leave?
Yes, the employers are obligated to provide five working days as
paternity leave.
4.5 Are there any other parental leave rights that employers
have to observe?
Yes, to provide pregnant women with a safe place to work. In case
of adoption, a maternity/paternity leave applies and the time
corresponding to the maternity and paternity leave shall be
considering for purposes of seniority.
4.6 Are employees entitled to work flexibly if they have
responsibility for caring for dependants?
Yes, if the employer and employee agree to modify the working
conditions, the employee shall be able to render services on a
flexibility bases.
5 Business Sales
5.1 On a business sale (either a share sale or asset transfer)
do employees automatically transfer to the buyer?
Only in a share sale the employees continue working for the buyer.
In the event of asset transfer, the following scenarios could be
applicable: (i) employees could be transferred to the buyer; (ii) the
employment of the personnel could be terminated; (iii) a mix of
scenarios (i) and (ii); and (iv) the employees could continue
working for the seller. The transfer of personnel is normally
negotiated during the process of acquisition.
5.2 What employee rights transfer on a business sale? How
does a business sale affect collective agreements?
The work conditions of the personnel could not be affected or
reduced in case of an employer substitution (transfer of employees);
therefore, if a CBA is applicable to the personnel, such an
agreement must be transferred to the buyer.
5.3 Are there any information and consultation rights on a
business sale? How long does the process typically take
and what are the sanctions for failing to inform and
consult?
There is no obligation on the employer to inform or consult with the
personnel regarding a business sale. However, it is always
advisable to comment and discuss the terms of the sale with the
Union representatives to avoid misunderstandings.
5.4 Can employees be dismissed in connection with a
business sale?
If the decision is to terminate the employment of an employee due to
the business sale, the employer must pay the corresponding severance
(three months of integrated salary, plus twenty days of integrated
salary for each year of services, plus a seniority premium).
5.5 Are employers free to change terms and conditions of
employment in connection with a business sale?
No, if the working conditions/rights suffer a modification that
reduce the employee’s rights, the employee will be able to sue the
new employer asking for the maintenance of the labour rights or for
the termination of the employment and payment of the full
severance, plus back salaries.
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6 Termination of Employment
6.1 Do employees have to be given notice of termination of
their employment? How is the notice period determined?
There is no obligation for the employer to inform in advance about
the termination of employment.
6.2 Can employers require employees to serve a period of
“garden leave” during their notice period when the
employee remains employed but does not have to attend
for work?
There is no prohibition for the employers to impose such a
condition. However, the prevailing practice in Mexico is not to ask
for a period of “garden leave” and terminate the employment the
day on which the employee is informed.
6.3 What protection do employees have against dismissal? In
what circumstances is an employee treated as being
dismissed? Is consent from a third party required before
an employer can dismiss?
In case of a wrongful dismissal, the employee could sue the
employer asking for his/her reinstatement or the payment of full
severance. An employee could be dismissed with cause by the
employer only if one or more reasons for termination determined by
MFLL are applicable, in that case, the employer has the burden to
prove the reason for termination, if the employer is not able to prove
the above, the payment of full severance plus back salaries will
apply. The employer does not require consent from a third party to
dismiss an employee.
6.4 Are there any categories of employees who enjoy special
protection against dismissal?
No, there are not.
6.5 When will an employer be entitled to dismiss for: 1)
reasons related to the individual employee; or 2) business
related reasons? Are employees entitled to compensation
on dismissal and if so how is compensation calculated?
Only when the employer rescinds the employment due to the cause
of termination stated by the MFLL, is it not obligated to pay the
severance; otherwise, if the employer terminates the labour
relationship without reasons for termination, the severance payment
will have to be paid. Severance consists in the payment of three
months of integrated salary plus twenty days of integrated salary
per year of services (integrated salary is calculated adding to the
salary all benefits and payments earned by the employee).
6.6 Are there any specific procedures that an employer has to
follow in relation to individual dismissals?
No, there are not; however, it is recommendable to execute
termination agreements which must be ratified before the Labour
Court for its enforceability.
6.7 What claims can an employee bring if he or she is
dismissed? What are the remedies for a successful
claim?
Claims or legal actions that an employee can bring are: (i)
reinstatement in his/her job; and (ii) payment of legal severances.
In both cases, the payment of back salaries and other benefits are
part of the claims remedies.
6.8 Can employers settle claims before or after they are
initiated?
Yes, the employer is able to settle, before or during, a labour claim
in any step of the procedure before the Labour Court resolves the
case.
6.9 Does an employer have any additional obligations if it is
dismissing a number of employees at the same time?
No, there are no additional obligations. However if the personnel
will be substituted by new equipment or technology, the employer
must pay, in addition to the severance, a month of integrated salary.
6.10 How do employees enforce their rights in relation to mass
dismissals and what are the consequences if an employer
fails to comply with its obligations?
Employees are able to sue an employer, either, individually or
jointly for their reinstatement or for a full severance payment; if the
employer obtains a resolution against its interests, and if it fails to
comply with its obligations, the Labour Court could order the
attachment of goods in order to preserve the rights of the plaintiffs
in the case.
7 Protecting Business Interests Following
Termination
7.1 What types of restrictive covenants are recognised?
From a labour perspective, restrictive covenants in general are not
recognised by the MFLL due to the provisions contained in Article
5 of the Mexican Constitution. Such article expressly prohibits
covenants in agreements or contracts by means of which a person
“restrains temporarily or permanently to a determined lawful
profession, industry or business activity” and grants individuals
with the right and freedom to engage in any lawful activity except
when there is a valid resolution that determines that third party’s
rights are affected.
In addition, the Mexican Constitution as well as the MFLL establish
that employees’ rights cannot be waived. This means that
restrictive covenants or agreements run the risk of being considered
null and void.
Regardless of the aforementioned, it is customary to include
restrictive covenants and confidentiality clauses either in the
employment contract, or in separate agreements, as grounds for
justified causes of termination of employment in case said
obligations are breached.
It is also common to agree post-employment restrictive covenants
on civil agreements in return for additional compensation for
employees in return for performance of said obligations.
Restrictive covenants shall remain in full effect between the parties
until one of the parties brings an action against the other before
Mexico
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courts, in order for the latter to issue a decision declaring the
agreement void before the Civil Courts. Once the Civil Court
declares the agreement to be null and void it will order for events to
be “restituted” to their initial status by means of which an employee
will be requested to deliver the compensation paid for performance
of the obligations of restrictive covenants.
Notwithstanding, Industrial Property Law expressly includes that
“the individual or company that contracts an employee that is
working or has worked as a professional, advisor or consultant that
renders or has rendered services for another individual or entity in
order to obtain its trade secrets will be liable for the payment of
damages and lost profits caused to such individual or entity”. A
person or entity that, by means of any illegal way, obtains
information that contains a trade secret will also be liable of
damages and lost profits.
7.2 When are restrictive covenants enforceable and for what
period?
There are no judicial precedents in this regard, based on our
experience. In order for these clauses to be enforceable it is
important that they are limited to a specific territory, specific period
of time, and identify the confidential information protected thereby.
7.3 Do employees have to be provided with financial
compensation in return for covenants?
It is advisable in order to strengthen their enforceability, for further
information please refer to question 7.1.
7.4 How are restrictive covenants enforced?
This will depend on the restrictive covenants, as well as how the
parties agree these covenants. One option may be by means of a
civil agreement, filing a civil claim alleging damage and lost profits
due to the breach of these covenants, and even criminal liability.
Please refer to question 7.1 for further information regarding
restrictive covenants.
8 Court Practice and Procedure
8.1 Which courts or tribunals have jurisdiction to hear
employment-related complaints and what is their
composition?
Labour claims are resolved by Federal and Local Conciliation and
Arbitration Boards (Courts). The same are formed by
representatives from the government, the employees’ sector and
employers.
8.2 What procedure applies to employment-related
complaints? Is conciliation mandatory before a complaint
can proceed?
All individual or collective disputes arising from labour
relationships between the employer and the employee or between
the employer and the trade union should be resolved before the
Labour Courts that exist at the federal and local levels.
a) Individual disputes generally arise when an employee files a
claim against an employer with the competent Board. Filing
a claim initiates the “ordinary” procedure, after receiving the
employee’s claim the Board sets a day and time for a hearing
that has two stages (conciliation and claim and answer to
such claim).
During the conciliation stage, the Board seeks to facilitate a
settlement between the employer and the employee. If the
parties fail to settle, the lawsuit proceeds into its second
phase, claim and answer to such claim. The employee may
ratify, clarify, or make further claims and the employer may
answer and challenge these.
Once this stage is finished, the Court sets an additional
hearing for the parties to offer and render evidence to support
their claims and objections. After introducing evidence, the
parties are given time to file their final arguments. The file
is then submitted in order for the Labour Court to issue the
resolution and notify each of the parties.
After the parties are notified of the resolution, they have
fifteen days to challenge it by means of a constitutional
proceeding (amparo) before the Collegiate Court of Labour
Matters.
b) The Collective Conflicts’ procedure depends on the type of
conflict filed by the parties [i.e., collective conflicts of an
economic nature, and strikes]. (Please refer to question 2.3
for further information).
8.3 How long do employment-related complaints typically
take to be decided?
The labour procedure takes around two or three years to be decided.
8.4 Is it possible to appeal against a first instance decision
and if so how long do such appeals usually take?
The first instance resolutions are able to be appealed before the
Federal Collegiate Tribunal by the “amparo” process. Such process
takes from five to nine months to be resolved.
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Hugo Hernández-Ojeda Alvirez
Barrera, Siqueiros y Torres Landa, S.C.
Paseo de los Tamarindos No. 150, P.B.
Col. Bosques de las Lomas
05120 Mexico D.F.
Mexico
Tel: +52 55 5091 0137
Fax: +52 55 5091 0123
Email: hho@bstl.com.mx
URL: www.bstl.com.mx
Education: Mr. Hernández-Ojeda completed his law degree at
Universidad Anáhuac del Sur (1990-1995).
Recognition: Ranked Band U in Labour & Employment by
Chambers Latin America. Latin America’s Leading Lawyers for
Business. The Client’s Guide 2011 and 2012. Chambers and
Partners mentioned him, in the publications of 2010 and 2011, as
one of the “Up-and-coming individuals” in their chapter of Mexico
Labour & Employment.
Latin Lawyer 250. Latin America’s Leading Business Law Firms
2010 recommends him for his competitiveness and expertise.
Who’s Who Legal Mexico 2010, 2011 and 2012 considered him as
one of the most remarkable lawyers in Labour matters in Mexico.
Memberships: Mexican Chair of the United States-Mexico Bar
Association, member of the Barra Mexicana Colegio de
Abogados, the International Bar Association, and the Asociación
Nacional de Abogados de Empresa, Colegio de Abogados.
Other activities: Speaker on labour-related matters for various
associations, universities and international organisations.
Luis Ricardo Ruiz Gutiérrez
Barrera, Siqueiros y Torres Landa, S.C.
Paseo de los Tamarindos No. 150, P.B.
Col. Bosques de las Lomas
05120 Mexico D.F.
Mexico
Tel: +52 55 5091 0155
Fax: +52 55 5091 0123
Email: lrg@bstl.com.mx
URL: www.bstl.com.mx
Education: Mr. Ruiz received his law degree from the Escuela
Libre de Derecho (1973-1978).
Recognition: Mr. Ruiz is recommended by Latin Lawyer 250.
Latin America’s Leading Business Law Firms 2010 and 2011 for
his experience, education, and expertise. Chambers Latin
America. Latin America’s Leading Lawyers for Business. The
Client’s Guide 2011 and 2012 ranks him Band 2 in Labour &
Employment. He has also been acknowledged by Who’s Who
Legal in 2011 and 2012 in Management, Labour & Employment.
Memberships: Member of the Barra Mexicana Colegio de
Abogados (Mexican Bar Association) and sits on the Labour Law
Commission.
Other activities: Mr. Ruiz has spoken at various seminars on the
topic of strikes for the Human Resources personnel, Plant
Managers, and Legal Department of General Electric.
BSTL, a leading Mexican law firm, offers personalised, timely, preventive legal solutions and representation to Mexican and
international clients in various industries and the public sector. The firm is formed by a prestigious team of over 70 lawyers, noted
for their professional and academic excellence, and ethical standards in the exercise of the legal profession.
BSTL has the necessary resources to meet clients’ challenges across virtually all areas of Mexican law.
BSTL’s goal is to excel in the rendering of personalised legal services; the firm’s policy is based on placing clients as our top
priority, giving them the full benefits and value of each and every one of the firm’s members.
BSTL members are known for their legal education and training, persistence and determination. They all treasure the ability to
share with clients those principles and objectives that set the firm apart in terms of quality, responsiveness, consistency and
perseverance.
Barrera, Siqueiros y Torres Landa, S.C. Mexico
Mexico
www.iclg.co.uk
59 Tanner Street, London SE1 3PL, United Kingdom
Tel: +44 20 7367 0720 / Fax: +44 20 7407 5255
Email: sales@glgroup.co.uk
Current titles in the ICLG series include:
Alternative Investment Funds
Aviation Law
Business Crime
Cartels & Leniency
Class & Group Actions
Commodities and Trade Law
Competition Litigation
Corporate Governance
Corporate Recovery & Insolvency
Corporate Tax
Dominance
Employment & Labour Law
Enforcement of Competition Law
Environment & Climate Change Law
Insurance & Reinsurance
International Arbitration
Lending & Secured Finance
Litigation & Dispute Resolution
Merger Control
Mergers & Acquisitions
Mining
Oil & Gas Regulation
Patents
PFI / PPP Projects
Pharmaceutical Advertising
Private Client
Product Liability
Project Finance
Public Procurement
Real Estate
Securitisation
Shipping
Telecoms, Media & Internet
Trade Marks

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Guide to Employment & Labour Law 2013

  • 1. Employment & Labour Law 2013 A practical cross-border insight into employment and labour law 3rd Edition The International Comparative Legal Guide to: Abdón Pedrajas & Molero Allen & Overy LLP Anderson Mōri & Tomotsune Barrera, Siqueiros y Torres Landa, S.C. Bener Law Office Boga & Associates Caiado Guerreiro & Associados Cárdenas & Cárdenas Abogados CSB Advocates Debarliev, Dameski & Kelesoska Attorneys at Law Eduardo Vásquez Silva & Compañía, Abogados El-Borai & Partners Dittmar & Indrenius Funes de Rioja & Asociados Grette Hogan Lovells Homburger Ikeyi & Arifayan KGDI Law Firm Kochhar & Co. Koep & Partners Latournerie Wolfrom & Associés MNKS Ogletree Deakins Pachiu & Associates Papacharalambous & Angelides LLC Piper Alderman Randl Partners Salans LLP Shook, Hardy & Bacon L.L.P. Stikeman Elliott LLP Toffoletto De Luca Tamajo e Soci Published by Global Legal Group, with contributions from:
  • 2. www.ICLG.co.uk Disclaimer This publication is for general information purposes only. It does not purport to provide comprehensive full legal or other advice. Global Legal Group Ltd. and the contributors accept no responsibility for losses that may arise from reliance upon information contained in this publication. This publication is intended to give an indication of legal issues upon which you may need advice. Full legal advice should be taken from a qualified professional when dealing with specific situations. Further copies of this book and others in the series can be ordered from the publisher. Please call +44 20 7367 0720 Contributing Editors Elizabeth Slattery & Jo Broadbent, Hogan Lovells Account Managers Beth Bassett, Brigitte Descacq, Dror Levy, Maria Lopez, Florjan Osmani, Oliver Smith, Rory Smith Sales Support Manager Toni Wyatt Sub-Editors Beatriz Arroyo Fiona Canning Editor Suzie Kidd Senior Editor Penny Smale Group Consulting Editor Alan Falach Group Publisher Richard Firth Published by Global Legal Group Ltd. 59 Tanner Street London SE1 3PL, UK Tel: +44 20 7367 0720 Fax: +44 20 7407 5255 Email: info@glgroup.co.uk URL: www.glgroup.co.uk GLG Cover Design F&F Studio Design GLG Cover Image Source iStockphoto Printed by Ashford Colour Press Ltd. March 2013 Copyright © 2013 Global Legal Group Ltd. All rights reserved No photocopying ISBN 978-1-908070-53-1 ISSN 2045-9653 Strategic Partners The International Comparative Legal Guide to: Employment & Labour Law 2013 General Chapters: 1 A Better Place to do Business? Employment Law Reform in the UK - Elizabeth Slattery & Jo Broadbent, Hogan Lovells 1 2 High-Stakes EEOC Class Action Litigation in America - William C. Martucci & Kristen A. Page, Shook, Hardy & Bacon L.L.P. 6 3 Engaging Independent Contractors for Multinational Organisations - Carson Burnham & Bonnie Puckett, Ogletree Deakins 9 Country Question and Answer Chapters: 4 Albania Boga & Associates: Renata Leka & Emirjon Marku 16 5 Argentina Funes de Rioja & Asociados: Ignacio Funes de Rioja 23 6 Australia Piper Alderman: David Ey & Sharlene Wellard 30 7 Belgium Allen & Overy LLP: Pieter De Koster & Inge Vanderreken 37 8 Canada Stikeman Elliott LLP: Patrick L. Benaroche & Hélène Bussières 44 9 Chile Eduardo Vásquez Silva & Compañía, Abogados: Eduardo Vásquez Silva & Pablo Concha Hermosilla 51 10 China Salans LLP: Dr. Iris Duchetsmann & Cynthia Zheng 56 11 Colombia Cárdenas & Cárdenas Abogados: Lorena Arámbula & Juanita Vera 63 12 Cyprus Papacharalambous & Angelides LLC: Loizos Papacharalambous & Nataly Papandreou 68 13 Czech Republic Randl Partners: Nataša Randlová & Romana Náhlíková Kaletová 75 14 Egypt El-Borai & Partners: Dr. Ahmed El Borai & Dr. Ramy El Borai 82 15 Finland Dittmar & Indrenius: Seppo Havia & Jessica Brander 88 16 France Latournerie Wolfrom & Associés: Sarah-Jane Mirou 96 17 Germany Allen & Overy LLP: Dr. Hans-Peter Löw 103 18 Greece KGDI Law Firm: Effie Mitsopoulou & Ioanna Kyriazi 110 19 India Kochhar & Co.: Manishi Pathak & Poonam Das 118 20 Italy Toffoletto De Luca Tamajo e Soci: Franco Toffoletto & Valeria Morosini 125 21 Japan Anderson Mōri & Tomotsune: Nobuhito Sawasaki & Sayaka Ohashi 132 22 Kosovo Boga & Associates: Sokol Elmazaj & Besarta Kllokoqi 139 23 Luxembourg MNKS: Marielle Stevenot & Sabrina Alvaro 145 24 Macedonia Debarliev, Dameski & Kelesoska Attorneys at Law: Emilija Kelesoska Sholjakovska & Elena Miceva 153 25 Malta CSB Advocates: Doran Magri Demajo & Ann Bugeja 160 26 Mexico Barrera, Siqueiros y Torres Landa, S.C.: Hugo Hernández-Ojeda Alvirez & Luis Ricardo Ruiz Gutiérrez 168 27 Namibia Koep & Partners: Hugo Meyer van den Berg & Stephen Vlieghe 174 28 Nigeria Ikeyi & Arifayan: Nduka Ikeyi & Sam Orji 181 29 Norway Grette: Johan Hveding & Jens Kristian Johansen 187 30 Portugal Caiado Guerreiro & Associados: Ricardo Rodrigues Lopes & David Coimbra de Paula 194 31 Romania Pachiu & Associates: Mihaela Cracea & Corina Radu 200 32 Spain Abdón Pedrajas & Molero: Sonia Cortés & Jaime Fernández Rodríguez 208 33 Switzerland Homburger: Dr. Balz Gross & Dr. Roger Zuber 216 34 Turkey Bener Law Office: Maria Celebi & Batuhan Sahmay 222 35 United Kingdom Hogan Lovells: Elizabeth Slattery & Jo Broadbent 228 36 USA Shook, Hardy & Bacon L.L.P.: William C. Martucci & Carrie A. McAtee 234
  • 3. Chapter 26 ICLG TO: EMPLOYMENT & LABOUR LAW 2013WWW.ICLG.CO.UK168 © Published and reproduced with kind permission by Global Legal Group Ltd, London Barrera, Siqueiros y Torres Landa, S.C. Mexico 1 Terms and Conditions of Employment 1.1 What are the main sources of employment law? The main sources of employment law are: (i) constitutional rights; (ii) international treaties approved by the Mexican Senate; (iii) precedents of the Supreme Court of Justice (jurisprudence); (iv) general rules of law; (v) tradition; and (vi) general rules of fairness. 1.2 What types of worker are protected by employment law? How are different types of worker distinguished? The Mexican Federal Labour Law (MFLL) protects all the individuals involved in an employment relationship. The MFLL considers three different types of workers/employees: (i) unionised workers; (ii) non-unionised workers; and (iii) entrust employees. 1.3 Do contracts of employment have to be in writing? If not, do employees have to be provided with specific information in writing? According to the MFLL, employment contracts must be documented in writing; otherwise, in case of litigation, the employer is obligated to evidence the working conditions. 1.4 Are any terms implied into contracts of employment? Employment agreements could be executed for a fixed time, specific task, initial training, specific season or indefinite time. Employment agreements must contain: (i) information of the parties; (ii) term of the employment; (iii) services to be rendered by the employee; (iv) place in which the services will be rendered; (v) salary information (i.e., amount, terms to be paid, payment day, etc.); (vi) training references; (vii) holidays; and (viii) any other working condition agreed to by the parties. 1.5 Are any minimum employment terms and conditions set down by law that employers have to observe? The minimum employment rights are: (i) vacation: six days for the first year of services, eight days for the second year of services, ten days for the third year of service, after that, vacation days are increased by two days every five years; (ii) vacation bonus: 25 per cent of the salaries related to vacation days; (iii) 15 days of salary as Christmas bonus; (iv) maximum of 48 hours as weekly work shift; (v) a rest day or day off per week; (vi) possibility to be part of the profit sharing; and (vii) minimum wage (currently the daily minimum wage in Mexico City is $64.76). 1.6 To what extent are terms and conditions of employment agreed through collective bargaining? Does bargaining usually take place at company or industry level? The employer and the trade union are able to agree on any terms and conditions of employment through collective bargaining agreements (i.e. benefits, compensation, work shifts, training, positions, etc.) as long as the agreement complies with the minimum mandatory rights and benefits granted by the MFLL, does not contain provisions that contradicts such law and is filed before the Labour Court. 2 Employee Representation and Industrial Relations 2.1 What are the rules relating to trade union recognition? According to the MFLL, unions have the right to call a strike against an employer in order to force the execution of a collective bargaining agreement (CBA), regardless of whether the union actually represents the majority of the employees. Due to the aforementioned, employers that do not have a CBA executed and duly registered before the Labour Court may face several calls to strike. It is mandatory for the Labour Court to reject any calls to strike of a trade union other than that with which the employer has previously executed a collective bargaining agreement duly registered before such authority. Labour Courts must reject any call to strike of a trade union other than that which the employer has previously executed a CBA duly registered; however, a different trade union does have the right to file a “Union Certification” procedure with the Labour Board. This procedure, which consists in such second union arguing that it, rather than the union with which the Company has executed the registered CBA, is the employees’organisation that represents the actual interests of the majority of the workers in the company. In case the second trade union is able to prove that it is the organisation that represents CBA, and as such, will have all the rights and duties conferred upon the trade union, including the right to call to strike. 2.2 What rights do trade unions have? According to the MFLL, trade unions have several rights, such as: prepare their own by-laws and regulations; elect their Luis Ricardo Ruiz Gutiérrez Hugo Hernández-Ojeda Alvirez
  • 4. WWW.ICLG.CO.UKICLG TO: EMPLOYMENT & LABOUR LAW 2013 169 © Published and reproduced with kind permission by Global Legal Group Ltd, London Barrera, Siqueiros y Torres Landa, S.C. Mexico representatives; and organise their management and administration, as well as their activities and their action programmes. In addition, trade unions may also file a call to strike to an employer in order to enforce the execution of a CBA, right to object the information filed by the employer to the Treasury Department in connection to profit sharing, request the employer to withhold the employees’ contributions for the trade union agreed on the CBA, participate on the preparation of the company’s training programmes, file a union certification procedure when they represent the majority of the employees of an employer, and execute the CBA, among others. 2.3 Are there any rules governing a trade union’s right to take industrial action? The MFLL recognises strikes as a temporary suspension of the work performed by a trade union of workers. The MFFL contains the applicable rules for strikes and its procedure. The notice for strike should be filed by the trade union before the competent Labour Court in order to accomplish one of the specific objectives mentioned on the MFLL (review the CBA or law collective bargaining agreement, obtain a balance between the employees’and the employer’s rights, force the execution of a collective bargaining agreement or law collective bargaining agreement, secure the compliance to a breach of the collective bargaining agreement, request the compliance to obligations related to profit sharing, and support another strike that shares any of the goals listed herein). The majority of the employees should perform the strike, otherwise after the strike initiates; the employer may file a procedure requesting the inexistence of the strike. Except for forcing the execution of a CBA, only the trade union in charge of the CBA may call for a strike or give notice of the strike. It should give notice of the strike to the employer, including a list of its demands, the objective of the strike, and the exact date and time when work activities will be suspended. Once a strike notice has been given to the employer, any, and all, action against the employer’s assets should be suspended. The Labour Union also should file a copy of the strike notice before the Labour Court at least six days prior to the strike in the case of private companies, and at least ten days prior to the strike in the case of public services. Within the forty-eight hours following receipt of notice, the employer should file a written answer with the Court. The Court will then conduct a conciliation hearing. The employees should appear at the conciliation hearing to proceed with the strike. The employer also should appear; otherwise the strike notice remains in full force and effect. This pre-strike period may be extended at the request of the labour union, but the strike will take place if no settlement is reached during this stage. During a strike, the employees should bring any ships, aircraft, trains, buses, or other means of transportation en route to their last scheduled destinations. For strikes affecting hospitals, clinics, and similar establishments, patients should continue to receive care until transferred to another location. A minimum number of employees, as determined by the Court, also should continue working in activities that would cause severe problems or compromise the safety or well-being of the workplace, machinery, equipment, or raw materials, or the resumption of suspended business activities. The Court may refuse to approve a strike if it fails to meet the requirements in the MFFL. The employees should then return to work within twenty-four hours. It is illegal for employees to strike in a number of cases, such as when a majority of the striking employees engage in violent acts against the employer or his property, or where the employees work in government establishments or shops during wartime. If the Court declares a strike illegal, the strikers’ employment relationships are automatically terminated. 2.4 Are employers required to set up works councils? If so, what are the main rights and responsibilities of such bodies? How are works council representatives chosen/appointed? There are no work councils considered by the MFLL. 2.5 In what circumstances will a works council have co- determination rights, so that an employer is unable to proceed until it has obtained works council agreement to proposals? This is not applicable. 2.6 How do the rights of trade unions and works councils interact? This is not applicable. 2.7 Are employees entitled to representation at board level? This is not applicable. 3 Discrimination 3.1 Are employees protected against discrimination? If so, on what grounds is discrimination prohibited? The MFLL prohibited any kind of discrimination practice. All individuals involved in an employment relationship are protected against discrimination on the grounds of: race; nationality; sex preferences; immigration condition; religion; civil status; social condition; age; gender; and/or disability. 3.2 What types of discrimination are unlawful and in what circumstances? Any kind of discrimination is unlawful. According to MFLL discrimination practices are prohibited from the hiring process. 3.3 Are there any defences to a discrimination claim? In case of a discrimination action claim, the employer must evidence that no discriminatory practice or policy are applicable or occurred; otherwise, a fine and other sanctions could be imposed on the employer. 3.4 How do employees enforce their discrimination rights? Can employers settle claims before or after they are initiated? Employees affected by discriminatory practices or policies could file or claim before the Labour Court or the National Board to Prevent Discrimination. Employers can settle claims before litigation is initiated or even when litigation takes place. Mexico
  • 5. ICLG TO: EMPLOYMENT & LABOUR LAW 2013WWW.ICLG.CO.UK Mexico 170 © Published and reproduced with kind permission by Global Legal Group Ltd, London Barrera, Siqueiros y Torres Landa, S.C. Mexico 3.5 What remedies are available to employees in successful discrimination claims? Remedies could be anything from a fine award of US$30,000.00 to a severance payment. 3.6 Do “atypical” workers (such as those working part-time, on a fixed-term contract or as a temporary agency worker) have any additional protection? No, there is no additional protection for “atypical” workers. 4 Maternity and Family Leave Rights 4.1 How long does maternity leave last? According to MFLL, maternity leave will take 12 weeks (six weeks before the child is born and six weeks after). The period could be negotiated by the employee in agreement with the employer. 4.2 What rights, including rights to pay and benefits, does a woman have during maternity leave? During maternity leave women are entitled to the benefits that they would normally receive. In addition, the following rules are applicable: Pregnant women may not work under hazardous conditions, perform industrial tasks during the night or during extraordinary hours or during sanitary contingencies. Their salary, benefits and rights should not be affected. Statutory maternity leave may be extended as necessary if work is not possible because of the pregnancy or the delivery of the child. During the nursing period, the new mother is entitled to two additional 30 minute rest periods per day to feed the child in an adequate and hygienic place set aside by the employer; if this is not possible the parties may agree to reduce her work shift one hour. When returning from maternity leave, the employee is entitled to return to her employment, provided that not more than one year has passed since the date of delivery. Maternity leave does not affect longevity of service. The employer should have enough seats available for pregnant women. During maternity leave, the Mexican Social Security Institute will pay the working mother 100 per cent over her daily salary of social security contribution. If the maternity leave period is extended, she is entitled to 50 per cent of the daily salary of social security contribution for a period of up to 60 days. 4.3 What rights does a woman have upon her return to work from maternity leave? The rights of women rights after maternity leave are: (i) to be considered as a regular employee; and (ii) two daily breaks of 30 minutes during the following six months as a lactation period. 4.4 Do fathers have the right to take paternity leave? Yes, the employers are obligated to provide five working days as paternity leave. 4.5 Are there any other parental leave rights that employers have to observe? Yes, to provide pregnant women with a safe place to work. In case of adoption, a maternity/paternity leave applies and the time corresponding to the maternity and paternity leave shall be considering for purposes of seniority. 4.6 Are employees entitled to work flexibly if they have responsibility for caring for dependants? Yes, if the employer and employee agree to modify the working conditions, the employee shall be able to render services on a flexibility bases. 5 Business Sales 5.1 On a business sale (either a share sale or asset transfer) do employees automatically transfer to the buyer? Only in a share sale the employees continue working for the buyer. In the event of asset transfer, the following scenarios could be applicable: (i) employees could be transferred to the buyer; (ii) the employment of the personnel could be terminated; (iii) a mix of scenarios (i) and (ii); and (iv) the employees could continue working for the seller. The transfer of personnel is normally negotiated during the process of acquisition. 5.2 What employee rights transfer on a business sale? How does a business sale affect collective agreements? The work conditions of the personnel could not be affected or reduced in case of an employer substitution (transfer of employees); therefore, if a CBA is applicable to the personnel, such an agreement must be transferred to the buyer. 5.3 Are there any information and consultation rights on a business sale? How long does the process typically take and what are the sanctions for failing to inform and consult? There is no obligation on the employer to inform or consult with the personnel regarding a business sale. However, it is always advisable to comment and discuss the terms of the sale with the Union representatives to avoid misunderstandings. 5.4 Can employees be dismissed in connection with a business sale? If the decision is to terminate the employment of an employee due to the business sale, the employer must pay the corresponding severance (three months of integrated salary, plus twenty days of integrated salary for each year of services, plus a seniority premium). 5.5 Are employers free to change terms and conditions of employment in connection with a business sale? No, if the working conditions/rights suffer a modification that reduce the employee’s rights, the employee will be able to sue the new employer asking for the maintenance of the labour rights or for the termination of the employment and payment of the full severance, plus back salaries.
  • 6. WWW.ICLG.CO.UKICLG TO: EMPLOYMENT & LABOUR LAW 2013 171 © Published and reproduced with kind permission by Global Legal Group Ltd, London Barrera, Siqueiros y Torres Landa, S.C. Mexico 6 Termination of Employment 6.1 Do employees have to be given notice of termination of their employment? How is the notice period determined? There is no obligation for the employer to inform in advance about the termination of employment. 6.2 Can employers require employees to serve a period of “garden leave” during their notice period when the employee remains employed but does not have to attend for work? There is no prohibition for the employers to impose such a condition. However, the prevailing practice in Mexico is not to ask for a period of “garden leave” and terminate the employment the day on which the employee is informed. 6.3 What protection do employees have against dismissal? In what circumstances is an employee treated as being dismissed? Is consent from a third party required before an employer can dismiss? In case of a wrongful dismissal, the employee could sue the employer asking for his/her reinstatement or the payment of full severance. An employee could be dismissed with cause by the employer only if one or more reasons for termination determined by MFLL are applicable, in that case, the employer has the burden to prove the reason for termination, if the employer is not able to prove the above, the payment of full severance plus back salaries will apply. The employer does not require consent from a third party to dismiss an employee. 6.4 Are there any categories of employees who enjoy special protection against dismissal? No, there are not. 6.5 When will an employer be entitled to dismiss for: 1) reasons related to the individual employee; or 2) business related reasons? Are employees entitled to compensation on dismissal and if so how is compensation calculated? Only when the employer rescinds the employment due to the cause of termination stated by the MFLL, is it not obligated to pay the severance; otherwise, if the employer terminates the labour relationship without reasons for termination, the severance payment will have to be paid. Severance consists in the payment of three months of integrated salary plus twenty days of integrated salary per year of services (integrated salary is calculated adding to the salary all benefits and payments earned by the employee). 6.6 Are there any specific procedures that an employer has to follow in relation to individual dismissals? No, there are not; however, it is recommendable to execute termination agreements which must be ratified before the Labour Court for its enforceability. 6.7 What claims can an employee bring if he or she is dismissed? What are the remedies for a successful claim? Claims or legal actions that an employee can bring are: (i) reinstatement in his/her job; and (ii) payment of legal severances. In both cases, the payment of back salaries and other benefits are part of the claims remedies. 6.8 Can employers settle claims before or after they are initiated? Yes, the employer is able to settle, before or during, a labour claim in any step of the procedure before the Labour Court resolves the case. 6.9 Does an employer have any additional obligations if it is dismissing a number of employees at the same time? No, there are no additional obligations. However if the personnel will be substituted by new equipment or technology, the employer must pay, in addition to the severance, a month of integrated salary. 6.10 How do employees enforce their rights in relation to mass dismissals and what are the consequences if an employer fails to comply with its obligations? Employees are able to sue an employer, either, individually or jointly for their reinstatement or for a full severance payment; if the employer obtains a resolution against its interests, and if it fails to comply with its obligations, the Labour Court could order the attachment of goods in order to preserve the rights of the plaintiffs in the case. 7 Protecting Business Interests Following Termination 7.1 What types of restrictive covenants are recognised? From a labour perspective, restrictive covenants in general are not recognised by the MFLL due to the provisions contained in Article 5 of the Mexican Constitution. Such article expressly prohibits covenants in agreements or contracts by means of which a person “restrains temporarily or permanently to a determined lawful profession, industry or business activity” and grants individuals with the right and freedom to engage in any lawful activity except when there is a valid resolution that determines that third party’s rights are affected. In addition, the Mexican Constitution as well as the MFLL establish that employees’ rights cannot be waived. This means that restrictive covenants or agreements run the risk of being considered null and void. Regardless of the aforementioned, it is customary to include restrictive covenants and confidentiality clauses either in the employment contract, or in separate agreements, as grounds for justified causes of termination of employment in case said obligations are breached. It is also common to agree post-employment restrictive covenants on civil agreements in return for additional compensation for employees in return for performance of said obligations. Restrictive covenants shall remain in full effect between the parties until one of the parties brings an action against the other before Mexico
  • 7. ICLG TO: EMPLOYMENT & LABOUR LAW 2013WWW.ICLG.CO.UK Mexico 172 © Published and reproduced with kind permission by Global Legal Group Ltd, London Barrera, Siqueiros y Torres Landa, S.C. Mexico courts, in order for the latter to issue a decision declaring the agreement void before the Civil Courts. Once the Civil Court declares the agreement to be null and void it will order for events to be “restituted” to their initial status by means of which an employee will be requested to deliver the compensation paid for performance of the obligations of restrictive covenants. Notwithstanding, Industrial Property Law expressly includes that “the individual or company that contracts an employee that is working or has worked as a professional, advisor or consultant that renders or has rendered services for another individual or entity in order to obtain its trade secrets will be liable for the payment of damages and lost profits caused to such individual or entity”. A person or entity that, by means of any illegal way, obtains information that contains a trade secret will also be liable of damages and lost profits. 7.2 When are restrictive covenants enforceable and for what period? There are no judicial precedents in this regard, based on our experience. In order for these clauses to be enforceable it is important that they are limited to a specific territory, specific period of time, and identify the confidential information protected thereby. 7.3 Do employees have to be provided with financial compensation in return for covenants? It is advisable in order to strengthen their enforceability, for further information please refer to question 7.1. 7.4 How are restrictive covenants enforced? This will depend on the restrictive covenants, as well as how the parties agree these covenants. One option may be by means of a civil agreement, filing a civil claim alleging damage and lost profits due to the breach of these covenants, and even criminal liability. Please refer to question 7.1 for further information regarding restrictive covenants. 8 Court Practice and Procedure 8.1 Which courts or tribunals have jurisdiction to hear employment-related complaints and what is their composition? Labour claims are resolved by Federal and Local Conciliation and Arbitration Boards (Courts). The same are formed by representatives from the government, the employees’ sector and employers. 8.2 What procedure applies to employment-related complaints? Is conciliation mandatory before a complaint can proceed? All individual or collective disputes arising from labour relationships between the employer and the employee or between the employer and the trade union should be resolved before the Labour Courts that exist at the federal and local levels. a) Individual disputes generally arise when an employee files a claim against an employer with the competent Board. Filing a claim initiates the “ordinary” procedure, after receiving the employee’s claim the Board sets a day and time for a hearing that has two stages (conciliation and claim and answer to such claim). During the conciliation stage, the Board seeks to facilitate a settlement between the employer and the employee. If the parties fail to settle, the lawsuit proceeds into its second phase, claim and answer to such claim. The employee may ratify, clarify, or make further claims and the employer may answer and challenge these. Once this stage is finished, the Court sets an additional hearing for the parties to offer and render evidence to support their claims and objections. After introducing evidence, the parties are given time to file their final arguments. The file is then submitted in order for the Labour Court to issue the resolution and notify each of the parties. After the parties are notified of the resolution, they have fifteen days to challenge it by means of a constitutional proceeding (amparo) before the Collegiate Court of Labour Matters. b) The Collective Conflicts’ procedure depends on the type of conflict filed by the parties [i.e., collective conflicts of an economic nature, and strikes]. (Please refer to question 2.3 for further information). 8.3 How long do employment-related complaints typically take to be decided? The labour procedure takes around two or three years to be decided. 8.4 Is it possible to appeal against a first instance decision and if so how long do such appeals usually take? The first instance resolutions are able to be appealed before the Federal Collegiate Tribunal by the “amparo” process. Such process takes from five to nine months to be resolved.
  • 8. WWW.ICLG.CO.UKICLG TO: EMPLOYMENT & LABOUR LAW 2013 173 © Published and reproduced with kind permission by Global Legal Group Ltd, London Hugo Hernández-Ojeda Alvirez Barrera, Siqueiros y Torres Landa, S.C. Paseo de los Tamarindos No. 150, P.B. Col. Bosques de las Lomas 05120 Mexico D.F. Mexico Tel: +52 55 5091 0137 Fax: +52 55 5091 0123 Email: hho@bstl.com.mx URL: www.bstl.com.mx Education: Mr. Hernández-Ojeda completed his law degree at Universidad Anáhuac del Sur (1990-1995). Recognition: Ranked Band U in Labour & Employment by Chambers Latin America. Latin America’s Leading Lawyers for Business. The Client’s Guide 2011 and 2012. Chambers and Partners mentioned him, in the publications of 2010 and 2011, as one of the “Up-and-coming individuals” in their chapter of Mexico Labour & Employment. Latin Lawyer 250. Latin America’s Leading Business Law Firms 2010 recommends him for his competitiveness and expertise. Who’s Who Legal Mexico 2010, 2011 and 2012 considered him as one of the most remarkable lawyers in Labour matters in Mexico. Memberships: Mexican Chair of the United States-Mexico Bar Association, member of the Barra Mexicana Colegio de Abogados, the International Bar Association, and the Asociación Nacional de Abogados de Empresa, Colegio de Abogados. Other activities: Speaker on labour-related matters for various associations, universities and international organisations. Luis Ricardo Ruiz Gutiérrez Barrera, Siqueiros y Torres Landa, S.C. Paseo de los Tamarindos No. 150, P.B. Col. Bosques de las Lomas 05120 Mexico D.F. Mexico Tel: +52 55 5091 0155 Fax: +52 55 5091 0123 Email: lrg@bstl.com.mx URL: www.bstl.com.mx Education: Mr. Ruiz received his law degree from the Escuela Libre de Derecho (1973-1978). Recognition: Mr. Ruiz is recommended by Latin Lawyer 250. Latin America’s Leading Business Law Firms 2010 and 2011 for his experience, education, and expertise. Chambers Latin America. Latin America’s Leading Lawyers for Business. The Client’s Guide 2011 and 2012 ranks him Band 2 in Labour & Employment. He has also been acknowledged by Who’s Who Legal in 2011 and 2012 in Management, Labour & Employment. Memberships: Member of the Barra Mexicana Colegio de Abogados (Mexican Bar Association) and sits on the Labour Law Commission. Other activities: Mr. Ruiz has spoken at various seminars on the topic of strikes for the Human Resources personnel, Plant Managers, and Legal Department of General Electric. BSTL, a leading Mexican law firm, offers personalised, timely, preventive legal solutions and representation to Mexican and international clients in various industries and the public sector. The firm is formed by a prestigious team of over 70 lawyers, noted for their professional and academic excellence, and ethical standards in the exercise of the legal profession. BSTL has the necessary resources to meet clients’ challenges across virtually all areas of Mexican law. BSTL’s goal is to excel in the rendering of personalised legal services; the firm’s policy is based on placing clients as our top priority, giving them the full benefits and value of each and every one of the firm’s members. BSTL members are known for their legal education and training, persistence and determination. They all treasure the ability to share with clients those principles and objectives that set the firm apart in terms of quality, responsiveness, consistency and perseverance. Barrera, Siqueiros y Torres Landa, S.C. Mexico Mexico
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