sensei
11/04/2016

Salary payment per hour. Case of an impractical amendment
Given the Amendment of the Federal Labor Law (FLL) that became effective on December 1st, 2013 and as a supposedly new modality the salary payment per hour was included in article 83. However, as it is common in our legislative system, the original intention was deformed to result then in an impractical concept and without reason for being in our legal framework.
To make clear the absurd of the amendment we shall take the case of the workers that accrue a minimum salary and those who represent, according to studies of the National Institute of Statistics and Geography approximately 13.7% of the economically active population.
Let’s start from understanding that from the origin, in our Constitution it was provided pursuant to article 123 the obligation of fixing minimum salaries sufficient to satisfy the needs of the human being and the Regulatory Law, that is the FLL, defined the minimum salary as the “the minor amount that the worker must receive in cash for the services rendered in a work shift”, wherefrom it is highlighted that in accordance with our legislation the minimum salary is foreseen and shall be paid by a work shift, same that may be of eight, seven or seven hours and a half as the case may be if it is a day, night or mixed work shift, respectively. Thus, in this year, in accordance with the National Commission of Minimum Salaries, a worker shall at least accrue the amount of $73.04 per work shift.
Well, the modality of salary payment per hour is provided in current article 83 of the FLL whereby it is set forth the following:
“Article 83. – The salary may be fixed by time unit, work unit, commission or at fixed price or in any other manner.
Regarding salary per time unit, such nature shall be specifically established. The worker and the employer may convene the amount, provided that it is a remunerative salary, and also the payment per each hour of service rendered, provided that it does not exceed the maximum legal work shift and the labor and social security rights are respected, that correspond to the position in question. The income that workers receive for this modality, in no case shall be less than the one that corresponds to a daily work shift”.
It is important to highlight that the drafting of preceding article 83 that stems from the Law of 1931, only sets forth the possibility, in a generic manner of agreeing the salary per time unit, without specifying that it may be fixed per hour as it is mentioned today, however, this does not mean that it was not possible before to agree the salary payment per hour, since, as we mentioned, the generic possibility of “agreeing the salary per time unit” makes us understand that it is allowed to agree a salary in accordance with the worked hours. Even from the Law of 1931 was already discussed the possibility of paying the proportion of the minimum salary in case of work shifts lower than the legal, for which purpose the Court in such time determined that it was legal to divide the salary between eight hours and pay the amount that resulted in accordance with the worked hours. We may observe the foregoing in the final judgment of August 27, 1937 of the Direct Constitutional Remedy (“Amparo Directo”) 3000/37/2ª, which was ratified by various later court precedents, even after more than seventy years, as we observed in the Isolated Court Precedent 2ª. LXI/2002, located in the Weekly Federal Court Report and its Gazette of the Ninth epoch, Tome XV, May, 2002, page 309, that indicates the following: Tomo XV, Mayo de GENERAL OR PROFESSIONAL MINIMUM SALARY. THE PAYMENT OF A PROPORTIONAL RETRIBUTION TO THE TIME REALLY WORKED, DOES NOT BREACH SUBSECTION VI OF SECTION A OF ARTICLE 123 OF THE FEDERAL CONSTITUTION, WHEN DUE TO THE NATURE OF THE WORK OR THE PHYSICAL CONDITIONS OF THE WORKER, THE LATTER MAY ONLY WORK DURING MINOR LAPSES THAN THE LEGAL WORK SHIFT.
Therefore, it is worth to ask which was the innovation that the amendment brought with the drafting of article 83 regarding the modality of salary payment per hour. Referring to the current text we find what is innovative in the last sentence of the second paragraph of such article that provides that “the income that workers receive for this modality, in no case shall be less than the one that corresponds to a daily work shift”, which literally means that a worker that is paid in accordance with the hours effectively worked in no case, either if he had worked one or seven hours, his salary may be less than the salary that corresponds to a worker that had worked a full legal work shift, that is, he shall accrue the salary that corresponds for eight, seven or seven hours and a half worked if it is a day, night or mixed night shift. Therefore, in accordance with this new sentence of article 83 we understand that the amendment was prohibitive, eliminating now the possibility of being able to pay the proportional part of the minimum salary when a salary per hour has been agreed and by less time than the legal work shift.
Now let’s place this conclusion in an example: a worker that works one hour daily and whose salary is agreed precisely for such worked hour, in accordance with article 83 of the Federal Labor Law, he shall receive at least the amount of $73.04 per hour, that is, the same that a worker must receive whose salary is agreed by work shift and he has worked it fully. Which takes us to absurd and impractical conclusions of saying that work per hour is equivalent to work per eight, seven or seven and a half hours. On the other side, under this premise it is illogical that an employer wishes to hire somebody for one hour when he can hire him for eight, seven or seven and a half hours and pay the same minimum salary.
Would have this been the true intention of the Amendment to article 83? that is, would the intention had been to limit the salary payment per hour?
We consider that the original intention of the amendment was not to reach to this absurd of eliminating completely, because it is impractical, the possibility of fixing a salary per hour, but expressly foresee the possibility of paying the proportional part of a legal work shift for the hour effectively worked. This, in first term, by simple legal logic since if the legislator is foreseeing the possibility of a salary payment modality per hour, he would not do so with the purpose of turning it impractical to not apply it, it would be better to simply prohibit so; on the other hand, we knew the original intention that was captured in multiple conferences, news, deployed and bulletins whereby it was boasted regarding the new regulation with respect to the salary payment per hour. As example we find Bulletin 75 of April 25, 2010 issued by the Mexico’s Department of Labor and Welfare (by its initials in Spanish “STPS”), whereby this new possibility of proportionally paying the salary per worked hours was mentioned, even though it were less than the minimum salary, the relevant paragraphs mention the following:
“The unawareness of the initiative has provoked critics, since it has been considered that this payment modality cancels the right of the workers to receive labor benefits and of social security and even “undermines” the work conditions.
Therefore, we observe the absurd of this conclusions of the existence of the salary payment per hour regulated in the labor amendment that derives being illogical or impractical to hire a worker per hour that shall earn the same than other that works the full work shift, it does not worth the case to hire somebody under this modality.
STPS considers that these opinions have no validity, since the amendment does not limit the labor benefits of the workers, nor pretends to deprive their social security. Even in the case that a number of hours less than the ordinary work shift (8 hours) is agreed, and the salary, calculated proportionally to the time worked, is less than the minimum salary, the worker shall have the benefits of Law and of social security, for which purposes the quotation quotes of IMSS shall be calculated over the basis of a minimum salary”.
However, given the opposition of a big sector, it was necessary to add the last part to the second paragraph of article 83 that we have commented and that provides that the salary per hour shall not be less than the salary that corresponds to a daily work shift.
Thus, of course we consider that establishing the possibility of fixing a salary proportional per worked hour, in accordance with the current minimum salary and that would result approximately of $9.00 per hour, results inhuman and unconstitutional for not being a remunerative salary and sufficient to satisfy the human needs, however we also have a legal provision that regulates the salary payment modality per hour, totally impractical when establishing that the value of the work hour of a worker which payment had been agreed under such modality shall have to be equivalent to the value of a full legal work shift of a worker whose salary has not been agreed per hour. We insist that there is no and there shall not be employer that finds attractive employing a worker per hour when he must pay him for such hour the same than a person that worked a full work shift.
In our opinion, if we really wish to implement the culture of salary payment per hour, the shortly solution would be to talk about a minimum salary per hour and not by work shift, then under this new meaning of the work per hour, discuss each year its value and then be able to have a practical legislation that promotes formal employment for those workers, like for example, students or housewives, that only have some hours during the day to work.

Salary payment per hour. Case of an impractical amendment
sensei
11/04/2016
Given the Amendment of the Federal Labor Law (FLL) that became effective on December 1st, 2013 and as a supposedly new modality the salary payment per hour was included in article 83. However, as it is common in our legislative system, the original intention was deformed to result then in an impractical concept and without reason for being in our legal framework.
To make clear the absurd of the amendment we shall take the case of the workers that accrue a minimum salary and those who represent, according to studies of the National Institute of Statistics and Geography approximately 13.7% of the economically active population.
Let’s start from understanding that from the origin, in our Constitution it was provided pursuant to article 123 the obligation of fixing minimum salaries sufficient to satisfy the needs of the human being and the Regulatory Law, that is the FLL, defined the minimum salary as the “the minor amount that the worker must receive in cash for the services rendered in a work shift”, wherefrom it is highlighted that in accordance with our legislation the minimum salary is foreseen and shall be paid by a work shift, same that may be of eight, seven or seven hours and a half as the case may be if it is a day, night or mixed work shift, respectively. Thus, in this year, in accordance with the National Commission of Minimum Salaries, a worker shall at least accrue the amount of $73.04 per work shift.
Well, the modality of salary payment per hour is provided in current article 83 of the FLL whereby it is set forth the following:
“Article 83. – The salary may be fixed by time unit, work unit, commission or at fixed price or in any other manner.
Regarding salary per time unit, such nature shall be specifically established. The worker and the employer may convene the amount, provided that it is a remunerative salary, and also the payment per each hour of service rendered, provided that it does not exceed the maximum legal work shift and the labor and social security rights are respected, that correspond to the position in question. The income that workers receive for this modality, in no case shall be less than the one that corresponds to a daily work shift”.
It is important to highlight that the drafting of preceding article 83 that stems from the Law of 1931, only sets forth the possibility, in a generic manner of agreeing the salary per time unit, without specifying that it may be fixed per hour as it is mentioned today, however, this does not mean that it was not possible before to agree the salary payment per hour, since, as we mentioned, the generic possibility of “agreeing the salary per time unit” makes us understand that it is allowed to agree a salary in accordance with the worked hours. Even from the Law of 1931 was already discussed the possibility of paying the proportion of the minimum salary in case of work shifts lower than the legal, for which purpose the Court in such time determined that it was legal to divide the salary between eight hours and pay the amount that resulted in accordance with the worked hours. We may observe the foregoing in the final judgment of August 27, 1937 of the Direct Constitutional Remedy (“Amparo Directo”) 3000/37/2ª, which was ratified by various later court precedents, even after more than seventy years, as we observed in the Isolated Court Precedent 2ª. LXI/2002, located in the Weekly Federal Court Report and its Gazette of the Ninth epoch, Tome XV, May, 2002, page 309, that indicates the following: Tomo XV, Mayo de GENERAL OR PROFESSIONAL MINIMUM SALARY. THE PAYMENT OF A PROPORTIONAL RETRIBUTION TO THE TIME REALLY WORKED, DOES NOT BREACH SUBSECTION VI OF SECTION A OF ARTICLE 123 OF THE FEDERAL CONSTITUTION, WHEN DUE TO THE NATURE OF THE WORK OR THE PHYSICAL CONDITIONS OF THE WORKER, THE LATTER MAY ONLY WORK DURING MINOR LAPSES THAN THE LEGAL WORK SHIFT.
Therefore, it is worth to ask which was the innovation that the amendment brought with the drafting of article 83 regarding the modality of salary payment per hour. Referring to the current text we find what is innovative in the last sentence of the second paragraph of such article that provides that “the income that workers receive for this modality, in no case shall be less than the one that corresponds to a daily work shift”, which literally means that a worker that is paid in accordance with the hours effectively worked in no case, either if he had worked one or seven hours, his salary may be less than the salary that corresponds to a worker that had worked a full legal work shift, that is, he shall accrue the salary that corresponds for eight, seven or seven hours and a half worked if it is a day, night or mixed night shift. Therefore, in accordance with this new sentence of article 83 we understand that the amendment was prohibitive, eliminating now the possibility of being able to pay the proportional part of the minimum salary when a salary per hour has been agreed and by less time than the legal work shift.
Now let’s place this conclusion in an example: a worker that works one hour daily and whose salary is agreed precisely for such worked hour, in accordance with article 83 of the Federal Labor Law, he shall receive at least the amount of $73.04 per hour, that is, the same that a worker must receive whose salary is agreed by work shift and he has worked it fully. Which takes us to absurd and impractical conclusions of saying that work per hour is equivalent to work per eight, seven or seven and a half hours. On the other side, under this premise it is illogical that an employer wishes to hire somebody for one hour when he can hire him for eight, seven or seven and a half hours and pay the same minimum salary.
Would have this been the true intention of the Amendment to article 83? that is, would the intention had been to limit the salary payment per hour?
We consider that the original intention of the amendment was not to reach to this absurd of eliminating completely, because it is impractical, the possibility of fixing a salary per hour, but expressly foresee the possibility of paying the proportional part of a legal work shift for the hour effectively worked. This, in first term, by simple legal logic since if the legislator is foreseeing the possibility of a salary payment modality per hour, he would not do so with the purpose of turning it impractical to not apply it, it would be better to simply prohibit so; on the other hand, we knew the original intention that was captured in multiple conferences, news, deployed and bulletins whereby it was boasted regarding the new regulation with respect to the salary payment per hour. As example we find Bulletin 75 of April 25, 2010 issued by the Mexico’s Department of Labor and Welfare (by its initials in Spanish “STPS”), whereby this new possibility of proportionally paying the salary per worked hours was mentioned, even though it were less than the minimum salary, the relevant paragraphs mention the following:
“The unawareness of the initiative has provoked critics, since it has been considered that this payment modality cancels the right of the workers to receive labor benefits and of social security and even “undermines” the work conditions.
Therefore, we observe the absurd of this conclusions of the existence of the salary payment per hour regulated in the labor amendment that derives being illogical or impractical to hire a worker per hour that shall earn the same than other that works the full work shift, it does not worth the case to hire somebody under this modality.
STPS considers that these opinions have no validity, since the amendment does not limit the labor benefits of the workers, nor pretends to deprive their social security. Even in the case that a number of hours less than the ordinary work shift (8 hours) is agreed, and the salary, calculated proportionally to the time worked, is less than the minimum salary, the worker shall have the benefits of Law and of social security, for which purposes the quotation quotes of IMSS shall be calculated over the basis of a minimum salary”.
However, given the opposition of a big sector, it was necessary to add the last part to the second paragraph of article 83 that we have commented and that provides that the salary per hour shall not be less than the salary that corresponds to a daily work shift.
Thus, of course we consider that establishing the possibility of fixing a salary proportional per worked hour, in accordance with the current minimum salary and that would result approximately of $9.00 per hour, results inhuman and unconstitutional for not being a remunerative salary and sufficient to satisfy the human needs, however we also have a legal provision that regulates the salary payment modality per hour, totally impractical when establishing that the value of the work hour of a worker which payment had been agreed under such modality shall have to be equivalent to the value of a full legal work shift of a worker whose salary has not been agreed per hour. We insist that there is no and there shall not be employer that finds attractive employing a worker per hour when he must pay him for such hour the same than a person that worked a full work shift.
In our opinion, if we really wish to implement the culture of salary payment per hour, the shortly solution would be to talk about a minimum salary per hour and not by work shift, then under this new meaning of the work per hour, discuss each year its value and then be able to have a practical legislation that promotes formal employment for those workers, like for example, students or housewives, that only have some hours during the day to work.