Mexico City, May 25, 2021.
The Second Transitory Article of the Decree that reforms the provisions related to subcontracting in labor, social security and tax matters, obliged the Ministry of Labor and Social Security ("STPS") to issue the general provisions for the registration of individuals and legal entities that provide specialized services or execute specialized works within 30 days from the entry into force of such Decree.
On May 24, 2021, the STPS published these provisions in the Official Gazette of the Federation, so that the term of 90 calendar days begins to run this day, so that individuals or legal entities that provide specialized services can register and appear in the Public Registry of Contractors of Specialized Services or Specialized Works. The foregoing is based on the Third Transitory Article of the Decree.
The highlights of the general provisions are summarized in the following points:
I. The provisions continue to be confusing by stating that the registration is for those who perform specialized services or perform specialized works and that, for such purpose, make available their own workers for the benefit of another to perform such services. We must remember that Article 12 of the Federal Labor Law, amended on April 23, 2021, states that the subcontracting of personnel is prohibited when it involves making available its own workers for the benefit of others.
II. The provisions speak of a contractor and not a subcontractor, thus obliging any provision of specialized services (and not only subcontracting) to register with the STPS.
III. The STPS will make available to applicants for registration, an electronic platform on the page: http://repse.stps.gob.mx/.
IV. In order to register, persons providing specialized services must comply with the following:
a. Information Requirements.
Electronic signature;
Name, denomination or corporate name in case of being a legal entity; or paternal and maternal surname and name(s) in case of being a natural person;
Commercial name;
4.State;
Federal Taxpayers Registry;
Address: street or avenue, exterior number, interior number, neighborhood or subdivision, zip code, locality, and municipality or mayor's office;
Geolocation;
8.Phone(s) and cell phone(s) and e-mail(s);
Number of the company's Articles of Incorporation, identification data of the notary or public broker who issued it, date of its notarization and corporate purpose (in the case of a legal entity);
10.Employer registration with the Mexican Social Security Institute;
11.Data of the legal representative of the specialized services company or specialized works execution company, as well as his/her landline and cell phone number, valid official identification (voting card, passport or professional license), CURP and e-mail address;
12.Affiliation with the Instituto del Fondo Nacional para el Consumo de los Trabajadores;
13.Total number of workers at the time of the registration request: indicating how many are female and how many are male;
Specialized economic activity in accordance with the "Catalog of activities for the classification of companies in the labor risk insurance" of the Mexican Social Security Institute contained in the Regulations of the Social Security Law on Matters of Affiliation, Classification of Companies, Collection and Taxation;
15.Activity or activities to be registered in the registry; and
16.Predominant Economic Activity
For each of these activities they must certify, under oath, the specialized nature of such activities and describe the elements or factors that support this exceptional nature, such as training, certifications, permits or licenses that regulate the activity, equipment, technology, assets, capital stock, machinery, level of risk, average salary range, experience, among others.
b. Documentary Requirements.
Valid official identification (voting card, valid passport or professional license) of the natural person or legal representative of the company;
Power of Attorney;
3.Payroll voucher (XML);
Articles of Incorporation and the corporate purpose in force;
5.Proof of registration in the Federal Taxpayers Registry;
6. Employer registration(s) with the Mexican Social Security Institute; and
7.Proof of address (electricity, property tax, telephone).
All the above documents must be sent in PDF format, fully legible.
V. Once the aforementioned information and documentation is received, the STPS through the platform will assign a folio number so that the applicant can follow up on the procedure. The STPS must rule on the registration within 20 business days:
a. To grant and assign a registration number, in force for the following 3 years, which number shall be indicated in all contracts entered into by the specialized service provider; or
b. If no decision is made, the applicant may request the STPS to grant the registration and if the latter does not do so within a term of 3 business days, it will be understood that the applicant has been registered for all legal purposes. Unfortunately, the provisions do not mention how the applicant will be able to prove that he/she has received this affirmative action.
VI. The provisions establish a series of situations for which registration may be denied or cancelled, among which are: (i) failure to prove that the company is specialized; (ii) failure to comply with tax and social security obligations; (iii) providing false information or using apocryphal documents; or (iv) providing specialized services that are part of the corporate purpose or main activity of the beneficiary.
VII. Finally, it should be noted that workers employed by specialized service providers, during the performance of their work, must identify themselves by means of image, name, badge or identity code that links them as workers of such service provider, when they are at the beneficiary's facilities.
The partners and associates of the labor law practice remain at your disposal for any further information you may require.
A T T E N T A M E N T,
Jorge De Presno
David Puente
Álvaro González
