Mexico City, May 25th, 2021.
The Second Transitory Article of the Decree that reforms the provisions relating to subcontracting in labor, social security and tax matters, charged the Ministry of Labor and Social Welfare ("STPS for its acronym in Spanish") to issue the general guidelines for the registration of individuals and legal entities that provide specialized services or perform specialized tasks within 30 days from the entry into force of the Decree.
On May 24thIn 2021, the STPS published these guidelines in the Federation's Official Gazette. This means that the term of 90 calendar days began to run on said day for individuals or legal entities that provide specialized services to register in the Public Registry for Providers of Specialized Services and Tasks. This is based on the Third Transitory Article of the Reform Decree.
Following are the most relevant aspects of the guidelines:
I. Guidelines are confusing when stating that the registry is for those who perform specialized services or specialized tasks that supply their own personnel for the benefit of another. Article 12 of the Federal Labor Law, as amended on April 23, 2021, provides that the subcontracting of personnel is prohibited when it implies supplying own workers for the benefit of others.
II. Guidelines refer to a contractor and not a subcontractor, thus obliging any provision of specialized services to register with the STPS (not only subcontracting).
III. STPS will make available to registrants an electronic platform on the following web page: http://repse.stps.gob.mx/
IV. To register, individuals and legal entities that provide specialized services/tasks must comply with the following:
A. Information requirements.
2.Name, denomination, or company name in case of legal entities; or surname(s) and name(s) in case of individuals.
Federal Taxpayers Registry.
6.Address: street or avenue, exterior, and interior number, neighborhood or subdivision, postal code, locality, and municipality.
8.Landline(s) and mobile phone(s) and email(s).
9.By-laws of the company, identification data of the notary or public broker that issued it, date of its notarization, and corporate purpose (in case of being a legal entity).
Employer Registry before the Mexican Institute of Social Security.
11.Data of the legal representative, including landline and mobile phone, official ID (voters' card, passport or professional license), Population code and email.
12.Affiliation with the National Fund Institute for the Consumption of Workers (INFONACOT for its acronym in Spanish).
13.The total number of employees at the time of application for registration, indicating how many are female and how many are male.
Specialized economic activity according to the "Catalog of activities for the classification of companies in the insurance of work risks" of the Mexican Institute of Social Security contained in the Regulation of the Social Security Law in Matters of Affiliation, Classification of Companies, Collection and Inspection.
15.Activity or activities that to be registered.
16.Preponderant economic activity.
The specialized nature of each activity must be declared, under oath, and also the elements or factors that support this nature must be described, such as training, certifications, permits or licenses that regulate the activity, equipment, technology, assets, capital stock, machinery, risk level, average salary range, experience, among others.
B. Information requirements.
1. Official ID of the individual or legal representative of the company (voter's card, Passport or Professional License).
Power of Attorney.
3.Proof of payroll (in XML format).
4.By-laws that include current corporate purpose.
Federal Taxpayers Registry.
6.Employer Registration(s) before the Mexican Institute of Social Security.
7.Proof of Address (property deed, telephone or electricity bill).
All documents referred to above must be legible and sent in PDF format.
V. As soon as the information and documentation are received, the platform will assign a folio to follow up on the process. The STPS must issue a ruling on the registration within 20 business days:
a. To grant and assign a registration number that will be valid for the next 3 years. This number must be indicated in all contracts entered into by the specialized services provider.
b. If the STPS is silent after 20 business days, the registrant will be legally allowed to request the registration number and if the labor authority 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 can prove having received this automatic approval (no affirmative).
VI. The guidelines establish a series of situations by which the registration can be denied or canceled, among which the following stand out: (i) failure to prove the specialized nature; (ii) not being up to date with tax and social security obligations; (iii) providing false information or documents; or (iv) providing specialized services that are part of the corporate purpose or predominant activity of the beneficiary of the services.
VII. Finally, employers of workers employed to provide specialized services must be clearly identified during the performance of their duties in the facilities of the beneficiary of the services, by name, badge or identity code that links them as employees of the services provider.
The partners and associates of our labor and employment practice group would be glad and ready to follow up as needed.
S I N C E R E L Y,
Jorge De Presno