Fernando González

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Reforma Laboral

El 01 de mayo de 2019 se publicó en el Diario Oficial de la Federación la reforma a la Ley Federal del Trabajo y otros ordenamientos relacionados. El propósito principal de la reforma es adoptar (i) las disposiciones en materia de justicia laboral y derecho colectivo derivadas de la reforma Constitucional de febrero de 2017; (ii) los principios del Convenio 98 de la Organización Internacional del Trabajo; y (iii) los compromisos asumidos por México en materia laboral en el Tratado de Libre Comercio México, Estados Unidos y Canadá (T-MEC).

Los aspectos más relevantes de la reforma incluyen:

Autoridades del Trabajo.

  • Desaparecen las Juntas Locales y la Federal de Conciliación y Arbitraje. Sus funciones las desarrollarán los Poderes Judiciales de la Federación y Estatales, a través de Tribunales especializados en materia laboral.
  • Se crean (i) el Centro Federal de Conciliación y Registro Laboral (“CFCRL”), encargado del registro de sindicatos y de contratos colectivos (entre otros), así como de la función conciliatoria como etapa obligatoria prejudicial; y (ii) los Centros de Conciliación Locales, a cargo de la función conciliatoria prejudicial a nivel Estatal.

Sindicatos.

  • Se garantiza la elección sindical mediante voto personal, libre, directo y secreto de los trabajadores.
  • Los patrones podrán solicitar la cancelación del registro de sindicatos que los extorsionen.
  • Los sindicatos deben contar con una “Constancia de Representatividad” expedida por el CFCRL, válida por 6 meses. Un requisito para obtenerla es contar con la firma de al menos el 30% de los trabajadores del centro de trabajo.

Contrato colectivo de trabajo (“CCT”).

  • Se establecen procedimientos de consulta entre los trabajadores como requisito de validez de los CCT iniciales y de sus revisiones. El procedimiento requiere, entre otras cosas, que los patrones entreguen a sus trabajadores, con acuse de recibo, una copia del CCT y/o de sus revisiones. Con esto se pretende terminar con la práctica de los denominados “contratos de protección”.
  • Los CCT ya existentes deben revisarse por lo menos una vez en el plazo de 4 años posteriores a la reforma, conforme a la nueva regulación.

Huelgas.

  • Como contra peso a la erradicación de los “contratos de protección”, la reforma establece la obligación de acompañar la constancia de representatividad a los sindicatos que pretendan emplazar a patrones por firma de un CCT.

Relaciones individuales de trabajo.

  • Se introducen nuevos requisitos aplicables a los contratos individuales de trabajo.
  • Es posible substituir los recibos de nómina impresos por comprobantes fiscales digitales por internet (CFDI).
  • Los patrones están obligados a adoptar un protocolo para prevenir la discriminación por razón de género, para atender casos de violencia y acoso sexual y para erradicar el trabajo forzoso e infantil.
  • El patrón puede negarse a reinstalar en casos específicos, cubriendo para tal efecto una indemnización.

Regulación procesal.

  • Se introduce una etapa conciliatoria prejudicial. Debe agotarse previo al juicio laboral, salvo por algunos conflictos de excepción. No puede durar más de 45 días naturales.
  • Se modifica la etapa judicial del procedimiento ordinario laboral.
  • La defensa del patrón consistente en negar lisa y llanamente la relación de trabajo no revierte la carga de la prueba al trabajador. La defensa del patrón consistente en negar el despido y ofrecer el trabajo no lo exime de probar su dicho.
  • No será posible dar de baja ante el IMSS a trabajadoras embarazadas que se digan despedidas por ese motivo (previa comprobación de su estado).
  • Se introduce la posibilidad de recibir notificaciones por buzón electrónico.

Plazos.

  • La reforma entró en vigor el 2 de mayo de 2019. Sin embargo, su ejecución estará a cargo de un organismo temporal denominado “Consejo de Coordinación para la Implementación de la Reforma al Sistema de Justicia Laboral”.
  • Para efectos registrales, el CFCRL iniciará funciones en un plazo de 2 años posteriores a la reforma, “atendiendo a posibilidades presupuestales”.
  • Como órgano conciliador, el CFCRL y los Tribunales federales iniciarán funciones en un plazo de 4 años posteriores a la reforma.
  • Las autoridades conciliatorias locales y los Tribunales locales comenzarán sus funciones en un plazo de 3 años posteriores a la reforma.
  • Los asuntos que se iniciaron ante las Juntas de Conciliación y Arbitraje (Federal o Locales) y ante la Secretaría del Trabajo y Previsión Social se concluirán ante éstas, conforme a las disposiciones legales vigentes al momento de su inicio.

Quedaron pendientes en la agenda legislativa diversos temas, tales como la regulación del “outsourcing”, la distribución de las cargas probatorias en juicio y la obligación de inscribir a las trabajadoras del hogar ante el régimen obligatorio del IMSS.

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