The Ministry of Labor and Social Welfare (STPS) has ready a new criterion to classify cutting, harvesting and harvesting services in agribusiness as the predominant economic activity of companies dedicated to the cultivation, packaging, distribution and export of fruit, that is, tasks that cannot be outsourced based on the new outsourcing rules.
These criteria would be the basis of the inspections in the agribusiness, which would interpret that the workers dedicated to the cutting, harvesting and harvesting They must be hired directly by the packing and exporting companies, since their tasks will be considered as part of the main activities of said companies.
“For the purposes of inspections in terms of subcontracting, the activity of cutting, harvesting or harvesting the fruit is part of the preponderant economic activity companies or individuals dedicated to the cultivation, packaging, distribution and export of fruit, since it is essential to have the fruit cut from the tree to start the process of sale, distribution, marketing and export”, is established in the criteria in review in the National Commission for Regulatory Improvement (Conamer).
In this sense, the labor inspection could consider that when a packing, distributing or exporting company acquires the fruit that it markets, the workers who intervened in the harvesting process must be hired by it.
For now, the criteria are awaiting the exemption from the Regulatory Impact Analysis (RIA) requested by the STPS from Conamer. Although the project has already generated comments against the private initiative (IP), mainly from the Employers’ Confederation of the Mexican Republic (Coparmex), the National Agricultural Council (CNA) and the Mexican Association of Human Capital Companies (AMECH ).
“We know that there are activities that sometimes it is not so easy to say if they are specialized or if they are activities that are part of an entire production process and that are not specialized. As the Secretary of Labor, what we have worked on are criteria that define for natural and legal persons which activities are specialized and which are not. The clearest example of this through operations is the cutting and harvesting activity”, explained a few days ago Fernando Jordan Siliceo del Prado, general director of the Federal Labor Inspection during a participation in a forum in San Luis Potosí.
The federal official indicated that the criteria are the result of inspections in agribusiness to analyze whether harvesting activities should be considered as specialized services or not for companies dedicated to export.
“An example is avocado, which is a million-dollar industry and, at the end of the road, the first line of that production process, which is the day laborer who is in agricultural fields, is the worker who participates the least in these utilities who turn out to be millionaires, because it is an industry that exports primarily to the United States. What these companies do is subcontract all the day laborer and not make it part of its production process and, consequently, that it is not part of the most important issue, which is the distribution of profits”, explained Fernando Siliceo.
The Repse will not be an option
In accordance with the project prepared by the dependency, the registration in the Registry of Providers of Specialized Services or Specialized Works (Rep) is unfeasible for companies seeking to provide cutting and harvesting services in the market.
“The companies that currently carry out the activity of cutting, harvesting or collecting fruits may act as employment agencies or intermediaries in the recruitment, selection, training, and transportation process, as long as these companies are not considered employers. In such virtue, said companies for the activities described above may be contracted as companies with specialized activity, as long as they have their registration with the Repse”, refer to the criteria.
During his presentation at the Week of Safety and Health at Work that took place in San Luis Potosí, Siliceo del Prado explained that the companies specialized in cutting and harvesting that are currently registered in the Repse “are going to be given a transitory period to that they can be regularized and that they can do the transfer of workerswith the help of the Mexican Institute of Social Security (IMSS) to the companies that are packers”.
The federal official pointed out that for now these criteria are only for agribusiness, “but it will not be the only one (…) in due course they will be defined for other types of industries and they will provide clarity, all with the aim of improving and that they respect labor rights from the workers”.
What do entrepreneurs think?
The IP has requested Conamer to reclassify the project as a Regulatory Impact Analysis (RIA) of moderate impact to be subject to public consultationsince they consider that the bill not only tightens the rules of the outsourcingbut can also have a negative impact on the employment in the field.
Among the observations sent to Conamer, the National Agricultural Council considers that the project implies “an invalid disproportionality” between the authority that the agency has to regulate inspection and the powers to regulate what may or may not be part of the inspection. preponderant economic activity of a company.
Although the CNA recognizes that the criteria seek to protect the rights of third parties, the organization also stresses that there is no affectation in the contracting of cutting and harvesting services. “The rights of third parties and of society would be affected if the labor authority is allowed to imperatively determine aspects that are outside its sphere of competence, thus violating the human right of free trade and the aforementioned principle of legality,” it states.
For its part, Coparmex considers that the subcontracting criteria “they imply additional economic costs for the companies that already had a planning of their operations based on the possibility that the Repse grants to register these activities.” Although the organization recognizes the inspection power of the STPS, it points out that “the regulatory proposal, in addition to violating rights, exceeds the existing legal framework.”
According to the organization, another of the effects that the application of the criteria would bring is the restriction of a scheme that allows workers to migrate and rotate and, at the same time, would restrict specialized services that “offer workers formal conditions, cover their administrative costs.”
Among other observations, for its part, the AMECH warns that the new outsourcing rules could increase informality, especially in a sector with high levels of labor force without social security. In addition to this, the organization points out, “there is a shortage of field personnel in certain areas of the country, which could generate complexity in the coverage that is required by seasons and the skills of the personnel.”
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