FLEXIBILIZATION AND GENERAL LABOR CONDITIONS*
Hector SANTOS AZUELA
Original Text (Spanish) PDF
SUMMARY
I. Concept and current significance of general labor conditions. II. The work schedule. III. Days off. IV. Right to vacations leave.
I. CONCEPT AND CURRENT SIGNIFICANCE OF THE GENERAL LABOR CONDITIONS
Nucleus and expression of contemporary labor context, general labor conditions make up the set of obligations and rights that employees and employers impose on each other by virtue of their labor relations.
Regulated within a social, humanistic and revolutionary context, according to Professors Alberto Trueba Urbina and Mario de la Cueva’s school of thought, nowadays reviled for its materialistic and irrational conservatism, general labor conditions were created, as of the 1970 reforms, as avant-garde institutions. In this respect, the principle that labor conditions will be proportional to the service or the work performed, and equal for same jobs was first acknowledged in prevailing doctrine and later in legislation. Nevertheless, with the signing of the Free Trade Agreement, René Laperrière explains1 that in Quebec and Canada, and we also add Mexico, the main problem of working life lies in the serious non-fulfillment of labor regulations. This situation is further complicated by the absence or paucity of labor union strategies to enforce and promote their general labor conditions.
In the face of modern times and new economic-social relations, Scognamiglio states2 that conditions of crisis appear and intermingle with changes in socio-economic reality. Among these changes one finds the technological progress, the incidence of which is noteworthy in the legal regime of labor relations.
Alert to the circumstances and, at present, to the fluctuating life conditions, the fall of wages and growing unemployment, both employees and employers will be able to modify general labor conditions.
This can be done by means of a formal request from employees by means of three hypotheses:
a) If to their judgment, wages are not remunerative.
b) If the work day is inhuman, because it is notably excessive given the fatigue it causes, and
c) If events or economic situations that need said changes take place.
Therefore, an inhuman working day is one that therefore implies an extreme overflow of energy or a serious hazard to employee’s health or life. Do not cease to consider that such fatigue can happen, due to the complexity or difficulty of the work, even within the length of the ordinary working day.
Adjustments and reductions of working hours have to be decreed by the corresponding Committee, according to the particular situation that arises. The employer will only request modifications to general labor conditions, in the event that there are economic circumstances to justify it.
The nature of these regulations extends the original (1931) power to request modifications of working conditions, solely circumscribed to collective contracts, to also include individual ones. In view of the obvious impression on procedural means to make use of this right, a very important doctrinal sector thinks that the legal mechanism to request the modifications in question is the ordinary legal proceeding.
Within these conditions, adjustments to maximum limits of days off and the work schedule will be established according to the assertions of scientific medical and social studies in order to grant protection, both modern and practical, to employees’ well-being and energy.
The principle of equality implies the suppression of discriminatory economic and labor treatment on account of race, age, gender, nationality, religion or political doctrine. This universal principle brings together the general part of the Federal Labor Law and international law in this field. In times of recession, with the wage crisis and economic decline, employees are exposed to dejection, resignation and in peius agreement of their general labor conditions.3
With neo-liberal ideology, selectively invoked by the United States, utilitarian logic of spontaneous mobility on the markets is not respected and promoted in terms of employment, as happened in Europe. Except for certain specific professions and restrictive laws that govern immigration, it obstructs and suppresses employees’ free movement to offer their services and to engage suitable working conditions to their advantage.4 Far from adjusting itself to a collaboration program, the United States policy tries to control the economic process in order to take over the territory and exploit its human and natural resources.
In Canada and in Quebec, an important school of thought opposes free trade in fear of its lethal effects on suitable employment and the general labor conditions.5 Likewise, the appearance of a new labor culture, promoted by the corruption generated by the Salinas administration and transnational power, similar distrust prevails in Mexico.
II. THE WORK SCHEDULE
If working day generically means a time relation, the work schedule is the time in which productive activity is carried out.
In the face of the current circumstances and the neo-liberal heyday, the golden dream appears once again for prosperous companies, that of restoring an unlimited work schedule or at least restricting the workday to 12 hours a day and 10 for women and children.6
The system in force has attempted to improve on the old system of subjecting employees, from childhood up to the age in which they lose their productive potential, through an efficacious regime, with parsimonious wages, an inhuman work schedule, without rest, legal holidays and without vacations either. For the same reason, as of the cutback of the work schedule to at least eight hours a day, employees are granted reasonable and decent treatment that allows them a certain type of free time which, by respecting their physical and professional well-being, enables them to develop their individuality and family integration.
Contrasting with the efficacious criteria of work carried out efficiently at the company’s service, work schedule is defined as the time during which the employee is at his employer’s disposal.
Dogma distinguishes two significant work schedule systems as part of productive work: the time effectively carried out and the time in which the employee is at the employer’s disposal.7 Thus, intentionally confusing, operative in vain for manipulating employees’ rights in labor lawsuits, the criteria that "it is necessary to distinguish between the working day, as the time in which the employee is at the employer’s disposal according to Article 58, and the time of services calculated to generate a series of rights such as vacations, Christmas bonuses and especially seniority, which is not only made up of the work schedule, but also by the days without which would equal the number of days worked, such as legal or contractual benefits derived from these labor relations" prevails in the labor "court system".
The consistent employer nostalgia that evokes the 1926 summit in London, the figure of effectively carried out labor gains serious presence again, notwithstanding the fact that social humanism has already surpassed it. With the participation of France, Italy, Germany, England and Belgium, this Conference agreed to accept that the work schedule should be understood as the time during which the employee remains at the businessman’s disposal, excluding the necessary periods of rest said employee should have, for example, breaks or meals. At the same time, occupations that due to their nature and quality imply intermittent work or that of waiting were excluded.8
Despite the utilitarian criteria of those aspiring to generalize the labor contract based on hours, which can be freely rescinded at any time at the employer’s will, the criteria prevails that the work schedule is the period during which the employee is at the employer’s disposal, either waiting for him or executing his orders.9
Again criticized by liberal speculators in the face of globalization and free trade, the restriction of the work schedule is once more considered a very serious impediment for development. Nevertheless, I do not believe it feasible that under the appeal of utilitarianism it will be denied that this right is a humanitarian measure, in fact a promoter of coherent development with consideration and respect of the work done. Therefore, it has been pointed out that in the avant-garde trade union claims, there is a constant demand of:
a) A reduction of the duration of the workweek, at least to the level of the controversial 40 hours in the above-mentioned period.
b) A reduction of the annual time of work, by expanding the vacation and holiday system, with full receipt of wages.
c) Likewise, a reduction of working life, by means of a strategy to lower the normal retirement age of 65 to 60 years of age. Nevertheless, in view of the current outlook, with the rise of liberal governments, that are moreover so corrupt, the current trend of Mexican social security changes its path to cancel, if possible, these kinds of claims.10
Along this train of thought, democratic trade unionism attempts to make progress along the line of consolidating and improving the work schedule by workweek system, to benefit the employees.
With neo-liberalism, an obvious tendency of establishing work schedules without any restrictions —regrettably more and more endorsed by the official framework— is revealed. Thus, a return to the times of liberal splendor is sought. In these times, employers speculated without restrictions in the labor markets to enrich themselves with the two-fold combination of low wages and long work schedules.
Within a very debatable formula that enables over eight hours a day of, legislators anticipate that the employer and employees will be able to distribute work schedules, to their convenience. Based on this, they shall be able to lengthen their normal schedule during the week, so that they can rest Saturday evenings, or any other equivalent form.
As to this matter, our labor regulations stipulate that the employee and the employer shall freely establish work schedules, without exceeding the legal maximum limits. In 1954, the court had already declared to the effect that:
While it is true that Article 69 of the Federal Labor Law (of 1931) authorizes making modifications in the daily and weekly work schedule, distributing the time in such a way that it allows the employee to rest on Saturday evening or any other equivalent form, this cannot be interpreted to the effect that it is lawful to violate the principles established by law as the minimum guarantees in favor of the working class, such as those that establish the maximum limit of working hours, whether day shift, mixed schedule shift or night shift, or those that establish the maximum amount of overtime that a person is allowed to work, and the times a week that this can happen.
Derived from the criteria of being at the employer’s disposal, the need to include intermittent periods in the work schedule, or time in which the employee commutes from his home to work and vice versa, is dealt with. On the other hand and along this train of thought, various compared regulations stipulate that the workday begins from the moment the employee is not only in his workplace, but doing his job, and that it ends, expressly, when he has left it.
Besides this criteria that deals with duration, there are others to classify work schedules:
a) In regard to its limitation, it subdivides work schedules into regular ones and exceptional ones, also known as overtime.
b) As to its development, work schedules can be continuous or, if the case, irregular.
c) As to its legal system of duration, work schedules can be regular or exceptional, bearing in mind the employee’s personal activities or conditions.
d) Based on the kind of compensation and extension, work schedules can be regular and extraordinary.
e) Finally, in terms of shifts, the working day can be of a fixed or rotating nature.
As we see it, it is clear that despite the challenges of the market, whether global or not, it will not be possible to bring down this right, since it is unquestionable that "in all civilized countries, one of the first manifestations of State interventionism in labor relations, was limiting work schedules, a limitation founded on economic, but fundamentally humanitarian, reasons".11
In national law, with a traditional inertia bitterly criticized for its rigidity and ineffectiveness, which we see as not always justified, legislators regulate three types of shift work schedules: The day shift in which one can work between six o’clock in the morning to 8 o’clock at night, with a maximum daily duration not exceeding eight hours; the night shift, from eight o’clock at night to six o'clock in the morning, with a duration not exceeding more than seven hours a day.
In view of the need several kinds of companies have of uninterrupted continuity, legislators regulate a third kind of working day, known as the mixed schedule shift. It is carried out over part of the day shift and part of the night shift. Faced with the challenges of productivity and economic openness, this transition shift is being employed more frequently. This shift has a maximum duration of seven and a half hours, provided that the night shift is less than three and a half hours. These work schedules are considered as such, assuming that this shift will take three and a half hours or more of the night shift.
In the field of comparative law, faced with the challenge of competition and full employment, it is always possible to study the case of systems that empower the government to decree the operative expansion and reduction of work schedules. However, under no budget, in the case of the ordinary form or of economic or professional stimulus it is allowed to exceed the limit of eight hours a day.
Work schedule regulations seek to obtain the satisfaction of the employee’s natural needs, but the employee should also provide efficient services to the company’s financing and the employer’s interests. However, if the employer must arrive at the expected productivity with adequate volumes of quality and quantity, he unavoidably takes charge of preserving employees’ health and well-being.
Thus, "the effective duration of the workday depends on economic factors (including rates of employment and wages), technical factors (the greater or lesser degree of industry automation) and institutional factors (the greater or lesser social sense of parliaments and governments, and the greater or lesser pressure that trade unions exert on them)".12
Against labor prejudices, we believe that the general demand of a 40-hour workweek is still progressing, in trade union struggles and in civil organization and resistance.
For any doctrinal school of thought, a workweek that cannot exceed forty hours of effective work should not be confused with the time of permanence in the workplace. Therefore, the so-called empty hours of work —during which the employee, without carrying out a given activity subject to periods of inactivity in the productive process or to the absence of clientele, remains at his workplace, diligent and ready for service— need to be assimilated.13
Our regulations constitutionally and legally regulate the humane working day, thus named by the prevailing doctrine. Characterized as such, it rises from the obligation of Conciliation and Arbitration Boards to analyze the nature and consequences of the work and employee conditions, when the employees so demand or gives notice to the labor supervision (as of yet inoperative). Thus, on having proof of this, they must lower, the work schedules that produce excessive fatigue without detriment to remaining wages or working conditions. This happens, for example, in the mining industry or in companies that, due to events, subject employees to exhausting stress every day.
Owing to technological demands or the nature of the activities themselves, legislators regulate work that calls for a work schedule superior to the regular one. On this particular point, our regulations regulate two kinds of extraordinary days:
a) One for emergency work, and
b) One for overtime work
Though similar and, to the detriment of employees, often mistaken, these kinds of work schedules are different. They act upon different claims and, as a result, have different legal bases.
The work that is carried out in cases of urgent situations in the company or in the face of an imminent risk creates the emergency work schedule. This is on the assumption that employees fulfill their obligations by putting themselves at their employer’s disposal to carry out the activities suited to their strengths and capabilities, preferably tied in with their job in the company. Employees cannot be demanded to risk their lives or carry out jobs that violate their senses or their safety.
Nevertheless, for ethical reasons and the principle of solidarity, if that is the case, employees have the obligation of carrying out the job, because if they refuse, they could be dismissed, with just cause. Always for reasons of solidarity and since it is a calamity, legislators ruled that emergency time should be paid in the same proportion as a regular workday.
Work schedules and overtime may only be negotiated if technical or economic requirements are needed, as can be inferred from Article 123, Section XI of the Constitution.
This kind of work schedule cannot exceed three hours a day either over a regular day, or more than three times a week.
As a rule and to compensate for the additional fatigue that it brings about, overtime hours will be paid double during the authorized period, and triple if they exceed the established legal limit. In this last case, it is to compensate for violating an employee’s rights, regardless of the responsibilities that it could generate in other spheres (civil, criminal, administrative, etc.).
Because of the particularity of everyday work, there are several assumptions in which the maximum legal work schedule can hardly be abided. This happens, for example, in domestic work or in high-level management positions, or in the case, of shepherds or rural protectors, insurance or commission agents.
It is important to make it very clear that if the time limit is eight hours for an employee’s job, the company can operate the time it deems necessary. To bring this about, shifts are planned and replacements are often planned.
Under the assumption and reason of principle of overtime that must be used in cases of technical necessity, it is necessary to include the following situations: The compensation system, force majeure, recovery of hours due to shutdowns, carrying out impending overtime work and even for an agreement of extensions, much used in Mexico.14
As special cases in comparative law, two hypotheses are considered for using minors and women for overtime:
There is one option that would certainly be convenient to the economic framework, in fashion, but that fortunately our positive labor law does not formally admit, for the time being.
In the face of the intense unemployment crisis, it is currently being debated whether a regular work schedule should be rationed or if overtime should be prevented in order to allow for a wider number of personnel. This can be profitable for companies that would save the double payment of overtime, but the price of quotas for concepts of social security and other inherent commitments like seniority would also increase.
Despite the use of extending work schedules as currently done, with the consent and even under employee protest, the employer is not entitled to overtime work. This way, it is also feasible that despite the uses or the prolonged practice of extending work schedules, the company is not prevented from lowering the load of overtime work.
The challenges of free trade and the frequent demand for overtime at the request of the employees have made us ponder on the practicality of qualifying payment of this kind of work schedule for conventional compensation lower than that of minimum legal levels with such payment understood as compensation. This situation not only implies a discouragement but a clear waiver of labor laws, which under no circumstance should have to be legitimized.
In some cases, other systems only allow for two extra hours over the regular work schedule and also establish a maximum limit of fifteen hours a month and one hundred in one year in order to protect employee’s well-being, but also to allow job mobility and opportunity. Regarding this, Lastra Lastra reminds us that occupational medicine repeats insistently that continuous and excessive work causes exhaustion, stress and weakness in employees. It also has repercussions in their optimal yield and productive contribution.15
The "special" work schedule, because of which it prolongs the regular one in order to have a Saturday day off or another equivalent form of rest, is not only unconstitutional, but base, at least in the light of a civilized world that in the 20th century acknowledged only eight hours of work a day as the limit to employees’ well-being. It should be well understood that this kind of work schedule is based on the assumption of the existence of needs of exception, not as it is usually used in a repeated, general and permanent way.
Our doctrine coincides in that a work schedule with overtime can be made use of in view of technical order requirements or claims of economic nature.
Until now, our regulations try to avoid this kind of work schedule, stipulating the emergency cases in which it can be used, in order to limit also the number of occasions that it can be used and when the compensation that should be paid are to be doubled or tripled.
In some labor laws, the trite flexibility of labor relations has given legal standing to the formula in which nine hours can be agreed upon as the daily work schedule. This situation is proscribed in our system, at least formally, since it implies an irrational and utilitarian regression to the violent principles of 19th century industrialism.
By express order, employees do not have the obligation of rendering their services for an amount of time over the authorized period. In this sense, one side of our jurisprudence has declared to the effect that it is mandatory to work overtime, since it is a time permitted by law. Another side has decided, however, and to our judgment understandably, that it is optional for employees to do this kind of work, since the employer should foresee the emergency, and in any case he can use the services of temporary employees. Under the argument that it implies high costs for employers, since they have to cover Social Security registration and quotas, among other things, it is affirmed that overtime constitutes a risk for the company.
On the other hand, the dramatic aspect of the case, faced with the manifest and widespread inadequacy of salaries, employees themselves are the ones who request overtime, even considering it part of their benefits. The truth is that daily or frequent use of overtime means that the fundamental protective principle of the labor law is not abided by.
At present, under the banner of modern times and in absolute dishonor to employees’ dignity, days of job-sharing are arranged in such a way that two or more people in charge of the same task agree to distribute the compensation proportionally between them. Or else, an average timetable system is set. In this system, in order to save paying overtime, employees accept the commitment "of working a fixed number of hours over a stipulated period, which can be weekly, monthly or annually. However, they must be prepared to change the number of hours they actually work, in order to face market fluctuations". In addition to job stability, this "flexible work schedule" lowers wages and affects the distribution of free time.16
Within the new and varied formulae for hiring labor in our times, the following shifts can be mentioned, depending on suitable kinds of work schedules to be used: the ten-hour shift, the compressed workweek, an equally divided schedule, alternate days off, a staggered schedule and job-sharing.17
Given the complexity in modern-day cities and particularly ours spoilt by unemployment, demographic density and pollution, it has been insistently thought advantageous to arrange the work schedule at intervals. This formula allows the employee to choose his time of arrival and departure within schedules spread out over the day. This way, the employee can increase or decrease his hours of work according to the circumstances that best suit his interests and those of his company.18 As we see it, it is clear that in any of its forms and purposes, including opportunities of job mobility, the reduction of working hours invariably brings about a decrease in wages.
Thus, within our daily framework employees are now unfortunately the ones who demand to be given overtime, a claim that is really being used constantly. However, this does not mean that the system should be fomented with the aim of generalizing it so as to suppress its exceptional nature, since what really happens is that salaries have shamefully deteriorated and do not reach adequate levels.
The use of overtime beyond the permitted limits constitutes a violation to the protective labor regulations and consequently should be paid triple (200 percent more than regular time), regardless of the responsibility and the administrative-labor sanctions that legislators clearly provide for (Articles 994, Section I and 1002 of the Law).19
Likewise, it is perfectly valid that the additional benefit the personnel’s overtime produces for the company determines a demand for higher payment than in the premises of the Law, through collective labor contracts.20
III. DAYS OFF
With the ratification of Agreement Number 14 of the International Labor Organization, Mexico bolstered its commitment to regulate the number of days off for industry. Through the ratification of Agreement 106 of said body, the Mexican system recognized days off in commerce and offices.
Days off awarded to employees should be diversified among which, besides the middle break during the working day, there is the daily un-interrupted break between one work schedule and another, with a duration of at least twelve hours.21 Days off of one and up to two days are not overlooked, which as a rule are usually enjoyed on Saturday and Sunday. Compensating days off for very intense periods of work or those granted because of holidays and even vacations can also be considered.
The idea of days off, besides their religious origin, derives from the demand of recovering from the effort of daily work, an undisputable physical need.22 However, nowadays it has the advantage of keeping all the benefits that the company grants the employee during the days in which he works untouched. In avant-garde trade unions, the sense of jurisprudence that establishes that when there is a mandatory day of rest a week, the salary of the seventh day should be paid, is gradually satisfied and enhanced.
In the cases in which salaries are paid monthly, jurisprudence declared that the salary corresponding to the seventh day should be included in the monthly salary, in the sense that there is no reason to add said salary, since in giving the employee monthly payments does not bearing in mind the number of days worked, but to a monthly time unit. This salary does not change over the twelve months of the year, in spite of the difference in the number of days worked. In summary, it can be pointed out that weekly days off are based on biological, family, social, cultural, economic and even religious principles.
At present, the weekly day off with the benefit of a salary is a universally renowned principle, which should be enjoyed, as a rule, on Sunday. It was considered that allowing a day off on a different day affects employees’ development and family unity. From the very Treaty of Versailles, it was pointed out that the day off should coincide, whenever possible, with Sunday, to be added to the Mexican system so that it consists of twenty-four hours. Along this train of thought, the Sunday day of rest can be exchanged in justified cases, as well as in exceptional cases. This criteria tends to be ignored and forgotten by trade unions in the big companies.
According to Section VI of paragraph A of the Constitution, Mexican law recognizes the weekly or hebdomadal day off, according to the traditional formula of six days of work per one of rest. In some compared systems, granting the Sunday day off on holidays must be approved by the administrative-labor authorities, if they consider the day off does not seriously affect the company’s technical and financial demands. These are requirements of technical nature, which determine work continuity, in view of the importance of the public interest or the conditions of the hired work.23
This kind of authorization is not needed in the Mexican system. However, work on days off is allowed but it is compensated by double or even triple the salary, when the protective limits of the current law in force are violated. In the same way, in Mexican law, the weekly day off with its particular system of remunerative adjustments is generally considered for all employees. Therefore, there is no place for exceptions in terms of the specific nature employees are endowed with, and the fact that they are temporary, domestic or seasonal workers proves to be irrelevant.
An interesting regulation, though without any application in Mexican law, is the one that stipulates that the employee who is unjustifiably absent for an entire week does not have the right to receive payment of his salary on his day off, due to the damage incurred to the company.24
With the 1970 reforms and thanks to Mario de la Cueva’s influence, our labor regulations granted a Sunday bonus of 25 percent added to the employee’s salary on this day. Therefore, regardless of the fact that the employee may rest on any other day of the week, it was meant to compensate the sacrifice it implies for the employee, to work on the calendar day of recreation and family life.
According to scientific studies of special-medical nature, legislators regulate a minimal intermediate 30-minute break for a continuous work schedule. In the event that employees should remain in their workplace during the break, the time will be calculated as effectively carried out.
Legislators also grant mandatory days off to commemorate three kinds of festivities:
a) Notable Civic events.
b) The celebration of May Day, Labor Day, and
c) Various festivities, a product of local customs.
Legislators indicate as mandatory days of rest:
I. January 1st [New Year’s Day].
II. February 5th [Anniversary of the 1917 Constitution].
III. March 21st [Benito Juarez’s Birthday].
IV. May 1st [Labor Day].
V. September 16th [Mexican Independence Day].
VI. November 20th [Mexican Revolution Day].
VII. Every six years, on December 1st, when dealing with Presidential Inaugural Ceremony, and
VIII. December 25th [Christmas Day].
On mandatory days off, employees and employers, or the Conciliation and Arbitration Board, will determine the number of people who will render services. To this regard, it is stipulated that the employee who works in these days will have the right to be paid double salary for the work carried out, in addition to the salary that is due to him for the mandatory day off.
For the same reasons, triple the amount must be paid for overtime that exceeds the legal minimum, or that carried out on days off.
To attain a proper balance between work quality and quantity, the piecework system tends to extend in such a way that the units of the work done are used as a suitable way to set salaries. However, in recent practice, a similar system is used, in which one tries to bring together the quantity produced and the time used to do the work. Or else, it is sought to combine a system that pays by basing itself on the work schedule (measured in time) with the levels of production obtained, using the mechanism of increasing salaries, rewards or productivity incentives.
To some schools of thought, remuneration by partial units of completed work turns out to be completely unexpressive if it is not defined how and how much every partial unit is valued. This is practically impossible if the time of completion of this partial unit is not analyzed. For the same reason, signing piecework contracts turns out to be so inexact as those that are agreed upon per unit of time. They prove to be vague in terms of determining the intensity of the work carried out, which the employer can demand by virtue of the job contract.
IV. RIGHT TO VACATIONS LEAVE
Without expressly mentioning it in the Constitution and since the 1918 local labor laws, legislators established the right employees have to the benefit of an annual vacation period.
Vacation leave comprises a long period of continuous rest, compensating for the arduous moments of work with shared, united and family rest.
Just as with working hours and days of rest, the labor law for annual vacation leave or vacation periods throughout the work year serves the purpose of allowing people’s physical recovery and a necessary interlude of recreation and family life. Mascaro Nascimento even believes it to be a right, but also very near the concept of an obligation. Legislators enforce an annual minimal vacation in which it is forbidden to work.25 Even with its public civil law, an annual vacation leave of at least six days is mandatory and cannot be waived. However, the truth is that the prevailing criteria considers vacation leave as having a recreational purpose, which aims at bringing about maximum production capacity and a sense of loyalty in employees, by means of a stimulus of remainder paid out as an incentive.
Without an explicit reference in the Mexican Constitution, the right to vacation is recognized by Law, jurisprudence and doctrine, and has acquired a mandatory nature. It is important to add that vacation leave was expressly recognized in the post-revolution labor laws of Zacatecas, Durango, Hidalgo, Oaxaca and Guanajuato, although they were omitted in the Constitution.
In current laws, employees’ right to enjoy at least six continuous days of vacation leave is regulated, insofar as the first year of service. In compliance with International Labor Organization Agreement 52 on vacation pay, the presidential bill on the Federal Labor Law included the above-mentioned principle, indicating that they should increase with years of service.
Legislators extend the right to an annual vacation period, lengthening that of employees with a continuous work schedule. Employees rendering intermittent and seasonal work are granted an annual vacation period proportional to the number of days worked in the year.
On the other hand, it has been stated that vacation leave represents an employee’s right that consists of not rendering the work agreed upon, which is legally correlated with the employer’s obligation of not demanding it. In Mexican labor customs found to be in practice, the right to vacation leave is usually enhanced in collective labor contracts, except in the deplorable cases of "under-the-table" contracts, secretly signed and behind employees’ backs with corrupt trade unions in the meanest labor conditions contained in the law.
With the progress of trade union force and the course of doctrine, the old prejudice, that the right to vacation leave is only paid if there is indisputable proof that the employee has worked the year stipulated by law, has decreased. Confronted with cases of discontinuous, temporary or seasonal work, employees have the right to proportional enjoyment of their right to vacation leave, which is of course remunerated.
Moreover, there is always the desire of those, observant of liberalism, who try to retrace the steps of those who believed that the days not worked by employees with leave, due to rest and certainly unjustified absences, should be deducted from the right to vacation. However, reality shows us that within Mexican regulations, all employees are entitled to claim not only fully remunerated vacation leave, but also an additional vacation bonus.
A clear indication of overcoming such inhuman and backward principles is the current criteria that the law clearly makes known, that when an employee dies, the beneficiaries can demand the amount proportional to the right to vacation leave. Payment of vacation leave corresponds to the amount of the regular day in force, and is therefore not usually included in extraordinary work. Furthermore, the general criteria that the above-mentioned salary is not understood as merely the base salary but integrating benefits, including any quota or earnings, has been adopted and protects the employee in his job.
According to the complexity of production in companies, especially if we take those of great importance into account, vacation leave can be granted privately and spread out at regular intervals among groups of employees. As to this, it is the employer who makes the decision, adopting equitable and reasonable criteria for his organization.26
An interesting trend that Mexican law does not cover, contemplates that the vacation period cannot begin on a holiday, which would in any case be added to the vacation period in question.27 In the Mexican system, the prevailing social criteria are that vacation leaves are to be enjoyed and they increase with employee seniority and not the actual time worked over the year.
This means that taking vacation leave does not depend on employees’ assiduity nor can it be reduced because of absences.28 If vacation leave consists of a long period, it can be divided into several terms to be taken throughout the year, in such a way that does not interrupt the production process for a long period of time and that best suits the purpose of alternating employee rest and recreation.
This period shall successively increase by two days a year of accumulated seniority, until a person reaches the amount of twelve vacation days. Later, increases in vacation days will be granted in terms of two more days of rest for every five years of work. Bearing always in mind considerations of a scientific, medical and sociological nature, it is stipulated that employees should have six consecutive days of rest annually in order to protect their well-being. For the same reason, this kind of rest cannot be waived and will not be negotiated for a compensating payment higher than an even higher remuneration. For medical reasons, this measure basically aims at having the employee rest and gaining more freedom to foment family unity, so as to recover his strength and avoid falling into a rut at work. In compliance with Agreement 52 of the International Labor Organization, legislators state that vacation leave should be authorized within the six months after completing one year of work on the job.
Likewise, if the employee should terminate his labor relations before completing a full year in the company, he has the right to claim the proportional share of the corresponding vacation payment. In cases of dispute, it is the employers’ obligation to prove the payment of employees’ vacation leaves, since with the guarantee of jurisprudence it is believed that this is the employer’s obligation. It concerns them to prove compliance to it through the suitable means at hand.
As a guarantee of certainty, the employer has the obligation of annually providing his employees proof of their seniority, and based on that, the vacation period due to them and the date on which they can begin to take it.
In 1970, under the pressure of social doctrine and accessible position on the government’s part, employees’ right to the additional enjoyment of a calculated vacation bonus of at least an additional 25 percent of the ordinary salary was introduced. It is worth mentioning that the intention in granting this right was to allow the employee to travel and have a good time with his family during a pleasant and obviously decent vacation period.
This is a clear example of how legislators, based on the principle of in favor prestatoris, can improve on the text of the Constitution in a specific law (the Federal Labor Law, in this case). In this matter, the Constitution has been neglectful in terms of mandatory right of annual vacation leave.
Nevertheless, it is necessary to consider that if this way is convenient for employees, they have the right to negotiate taking their vacation leave for higher wages that equal their aspirations.
Thus, beyond the six continuous days of mandatory vacation leave, employees can resolve on the work of the remaining days that are due to them.
In order to foment family unity, there are systems that establish that when a married couple works for the same company, vacation leaves should be authorized jointly and for the same time.29
An area of doctrine believes that not only a couple, but the whole family, has the labor privilege of claiming vacation leave on coinciding dates, if members of said family work for the same company.
As I see it, the principle that vacation leave cannot be compensated by money cannot mean that the employee loses his bonus if he does not take them at the proper time. In addition to representing an abuse on the company’s part in terms of his labor rights, its nature is not subject to limitations nor can it be waived. For this reason, the criteria adopted in the Mexican system, that if rights are not laid down, as in the case of vacation, the full amount is lost over a year should be called into question.
Aware of the new times, but always respectful of the generous mark of new humanism, on analyzing labor conditions with an outlook on the range of flexibility and globalization, we believe that meanness and the arrogant heyday of the new liberalism has few days left, in view of the ravages of desperation and the extreme poverty of most of the working population. As has happened so many other times in the painfully repeated history, the resistance of the masses is perceived as conclusive, in such a way that in the material world of competition, where monopoly and extreme violence prevail, the hoped-for dawning towards real freedom and social justice paradoxically begins.
Notes
* Translated by Carmen Valderrama.
1 Laperrière, René, "El derecho laboral en Québec y en Canadá en el contexto del libre comercio continental", Temas Jurídicos, Mexico, Nos. 2 and 3, October 1996- September 1997, pp. 84 et seq.
2 Scognamiglio, Renato, Diritto del lavoro, Nápoles, Juvene, 1992, p. 16.
3 Laperrière, René, op. cit., p. 20.
4 Cfr. ibidem, pp. 20 et seq.
5 Ibidem, p. 25.
6 Cfr. Scelle, Georges, Droit ouvrier, París, Colin, p. 29.
7 Cfr. Mascaro Nascimento, Amauri, Curso de direito do trabalho, São Paulo, Saraiva, 1989, p. 484.
8 Cfr. Lastra Lastra, José Manuel, "Defender valores y promover el cambio: ¿difícil alternativa?", Temas de derecho, Santiago de Chile, Universidad Gabriela Mistral, Year X, Nos. 1 and 2, January-December 1995, pp. 12 et seq.
9 Mascaro Nascimento, Amauri, op. cit., p. 485.
10 Cfr. Camerlynck, G. H. and Lyon-Caen, G., Droit du travail, Paris, Dalloz, 1975, p. 216.
11 Montoya Melgar, Alfredo, Derecho del trabajo, Madrid, Tecnos, 1981, p. 310.
12 Ibidem, p. 309.
13 Camerlynch, G. H. and Lyon Caen, G., op. cit., p. 217.
14 Cfr. Montoya Melgar, Alfredo, op. cit., pp. 313 et seq.
15 Lastra Lastra, José Manuel, op. cit., p. 12.
16 Ibidem, p. 16.
17 Idem.
18 For more on this topic, cfr. Lastra Lastra, José Manuel, La jornada de trabajo laboral, Year V, No. 58, 1997, pp. 10 et seq.
19 Santos Azuela, Héctor, op. cit., p. 251.
20 Cfr. Scognamiglio, Renato, op. cit., p. 277.
21 Krotoschin, Ernesto, Derecho del trabajo, Buenos Aires, Depalma, 1993, p. 368.
22 Russomano, Víctor Mozart and Bermúdez Cisneros, Miguel Ángel, El empleado y el empleador, Mexico, Cárdenas, 1982, p. 534.
23 Ibidem, pp. 534 and 535.
24 Ibidem, p. 540.
25 Mascaro Nascimento, Amauri, op. cit., pp. 486 et seq.
26 Scognamiglio, Renato, op. cit., p. 246.
27 Ghidini, Mario, Diritto del lavoro, Padua, Cedam, 1976, p. 293.
28 Mascaro Nascimento, Amauri, op. cit., p. 505.
29 Pérez, Benito, op. cit., Vol. I, p. 139.
