IMPACT OF THE LABOR REFORM ON LABOR CONCILIATION AND LABOR TRIALS, IN COMPARISON WITH THE PREVIOUS PROCEDURE SINCE ITS ENTRY INTO FORCE IN THE STATE OF JALISCO.

Let's talk a little about the administration of Justice in Labor Matters, with a little more than 03 years of the entry into force of the reform, in the State of Jalisco on October 1, 2021.

One of the great changes that have been noticed is the decrease in the number of labor lawsuits, thanks to the mandatory process of exhausting the conciliation, perhaps not as expected, but that is a start.

This has led lawyers who did not conciliate to go directly to the lawsuit, reconsidering nowadays the possibility of negotiating, which is also being seen, being that you can no longer go to sue for the sake of suing, since for such lawsuit to be admitted, the proof of non-conciliation has to be attached as a requirement of form.

One of the major problems was the lack of follow-up by the authorities in the trials, which was what happened with the Conciliation and Arbitration Boards and the bad practices of litigants and officials, which lengthened and increased the cost of the trials, the justice system, and therefore, justice was not prompt or expeditious, thus generating the saturation of the justice system in the labor area, and leading small and medium-sized companies to bankruptcy, due to the high labor liabilities.

With the reform, the Labor Conciliation Centers play a very important role, since they are in charge of exhausting the conciliation process, and in the event that a conciliation is not reached, they will issue a certificate of non-conciliation, which will lead to a labor trial.

Society has been changing, so the laws are also being reformed, in the case of Mexico, it was too late to evolve legally, there is still a long way to go, compared to other countries.

Work centers (Conciliation).

Let's talk about the Labor Conciliation Centers, either at the local or federal level.

They are in charge of receiving complaints from workers when they feel that their labor rights have been violated, the most common being the lack of payment or fulfillment of benefits or unjustified dismissal.

For which they request a summons that the Labor Center, through its notifiers, will send to the employer, so that he/she attends the appointment on the date and time indicated in the document that is delivered to him/her for the Prejudicial Hearing.

Let's remember that before the Reform, these summons were made before the Conciliators at the Secretary of Labor and Social Welfare, but most of the time the employers did not show up to these appointments and this caused the case to go to trial.

Other times, as it was not necessary to exhaust the conciliation, many workers, on the advice of their lawyers, were told not to waste time on that and to go directly to sue, this is where it comes in that not all were due to malpractice, if not that the employers did not give it due importance.

Returning to the present, once the employer is notified of the appointment for the preliminary hearing, if the employer does not attend the hearing, he will be subject to a fine of --------, and now it is mandatory to exhaust the conciliation, so from the beginning in the summons there are warnings of a fine in case of non-attendance.

Let us remember that the labor reform was made with the purpose of having the judicial power be in charge of imparting labor justice, but above all, to avoid saturation of the justice system, which is where the Labor Center comes in, to perform this function, although the latter continues to depend on the Executive.

Preliminary hearing appointments may not exceed two appointments, sometimes three appointments are granted when the parties are on the verge of reaching a negotiation, or when it has not been possible to locate the employer in order to notify him/her of the appointment.

The conciliatory stage may not exceed 45 working days, if this period is exceeded and it has not been possible to locate the employer, the applicant (worker) will be given a certificate of non-conciliation, or if the worker is present and no agreement is reached, he/she will also be given a certificate of non-conciliation, so that the worker may be able to sue, either with the Labor Attorneys, which are free attorneys provided by the State, or through a private attorney that the worker decides to hire on his/her own.

In the event that the petitioner (worker) and the employer reach an agreement, the conciliator will be in charge of drafting an agreement, which once it is completed, will be elevated to the category of Executed Judgment.

Labor courts.

The cases in which the employee may skip the conciliatory stage are in cases of discrimination, harassment at work, labor violence, sexual harassment, but in order for the Court to determine the admission of the claim, the evidence offered by the employee must show evidence of such.

The labor procedure changes with the reform, first of all, as already mentioned, the Labor Courts were created, which are now part of the Judicial Branch, and no longer part of the Executive Branch, which were the Conciliation and Arbitration Boards.

The shape and stages also change:

Old procedure

The procedure before the Local Conciliation and Arbitration Boards was as follows:

1. Presentation of the claim.
2. The writ of summons (admission), where it was admitted in its entirety, the hearing was scheduled as provided in numeral 873 of Conciliation, Claim and Exceptions, and the defendant or defendants were ordered to be summoned. (At this stage, the trial could be delayed for years, if they could not summon any of the defendants, if they did not pass the minutes of summons, it could take years at that stage, also mentioning that due to the workload of the Board the dates of the hearing were scheduled from 2 to 4 months).
3. Hearing of conciliation, claim and exceptions, is where the claim is answered, the parties make use of reply and counter-reply or promote any incident if necessary, according to the litis.
4. If the hearing indicated in advance was held, the hearing for the Offering and Admission of Evidence was held (two things could happen at this stage: the evidence of the parties could be admitted or rejected and the hearing for the admission of evidence could be scheduled, or the authority could reserve the right to rule on the admission of evidence, which could be delayed for years).
5. Some indicated that the evidence would be presented in a single day, which did not mean that all the evidence would be presented, because several situations could occur that could defer one or several pieces of evidence, and this caused more dates to be set, the other was that a date would be set for each piece of evidence, this caused it to take months or years.
6. If there was no more evidence pending to be presented, the pleadings period was opened and the case would also get stuck if it was not followed up.
7. Then the closing of the preliminary investigation, where the same thing happened as in the pleadings.
8. Once the investigation was closed, the files were turned over to the draft award, and from there it was to wait for the award to be rendered, and its due notification to the parties.
9. Once the award was notified, it was common for the party that did not favor the award to file an indirect appeal and the other party to file an adhesive appeal.

These trials took more than 5 years to be resolved, with exceptions, of course, causing the labor justice system to become saturated, which was far from being prompt and expeditious as required by law.

New procedure

If progress has been seen in a matter of time, whether or not the system becomes saturated again, we will see with more time, but let's hope it doesn't happen, since it is the main objective with which the Labor Reform was created.

What has been a challenge is the criteria of the judges, since the 95% have a judicial career, but had not been involved in labor matters, so the criteria are sometimes a little ambiguous, contradictory, or strange, to call them so colloquially, This is why the litigants, both employers and workers, opt to reach settlements, which at the same time fulfills the expectation of not saturating the system, but such settlements are not for not saturating the system, but to avoid the risk of a sentence with the aforementioned criteria.

The first Courts, due to the workload, are already going slower due to the number of labor lawsuits filed in each one, while those that have not been in operation for long, are going very fast in each stage, being the stages of the new procedure:

1. Presentation of the claim (As already mentioned in the conciliatory stage, it is a fundamental requirement to attach the proof of non-conciliation, in addition to the fact that evidence is offered here from the claim).
2. Admission of the lawsuit, where the summons to the defendant or defendants is ordered and the admission of evidence of the plaintiff (worker) is reserved.
3. Once summoned to the lawsuit, you have a term of 15 business days to answer, offer evidence and object to the evidence of the plaintiff, in this case if you do not comply in a timely manner, you lose your right and will be declared in default and not having offered and objected to evidence (here we can say that your trial is lost).
4. The period of reply and objections is opened for the plaintiff, as to the answer made by the defendant and its evidence, for which the plaintiff is served with said document (here enters a great dilemma, there are Courts that make the publication in the bulletin, and that day the term begins to run, there are others that notify as it should be, because we are talking about terms), in this same stage is where any incident is promoted if necessary.
5. After that, the counter-reply period is opened, with the same observations as in the reply regarding the terms and notification.
6. There are Courts that, at their discretion, set a date for a conciliatory hearing for the parties to reach an agreement, which may be between the filing of the answer and the terms of reply and counter-reply.
7. Once these stages have been completed, a date and time is set for the preliminary hearing, where the facts and evidence are reviewed, and evidence is admitted, here is where an appeal for reconsideration is filed if necessary, if no appeal is filed in such hearing a date and time will be set for the trial hearing.
8. The trial hearing is where all the evidence admitted to the parties is presented, it can be in that same hearing if there is enough time or it can be suspended and a date can be set for its continuation, in case there is no evidence pending to be presented, the Judge can dictate the sentence or reserve to dictate the same.
9. Here the same applies as in the old procedure, the party that is not favored by the judgment will file its direct amparo against the judgment and the other party will file its adhesive amparo to defend the judgment.

In the new procedure, I have seen ordinary labor lawsuits that have taken 5 months from the time the lawsuit is filed until the sentence is issued, something fast and others up to a year, this depends on the workload in each court and if the hearing is not postponed for reasons beyond the court's control.

The amparo trial is different, but we can talk about that in another article, which is why the administration of justice in labor matters in Jalisco is faster.

It should be noted that the approach in the administration of state justice, at the federal level, tends to be faster.

Written by:

Erika Saucedo Aguila

 References.

Federal Labor Law (2024). Virtual Library, Congress of the Union. Revised December 03, 2024. https://www.diputados.gob.mx/sedia/biblio/virtual.htm

Labor Conciliation Manual, Individual Matter. April 24, 2020. Revised December 23, 2024, link:

https://reformalaboral.stps.gob.mx/sitio/rl/doc/MANUAL_DE_CONCILIACION_LABORAL_24-04-2020_DAGN_VF.pdf