September 23, 2020

“The revision of the labor regulations must be slow and agreed”




The Commission of the Treaty between Mexico, the United States and Canada (T-MEC), which entered into force on July 1, has elected Salvador del Rey, partner and president of the Cuatrecasas Institute and professor of Labor Law, as one of the five arbitrators who will participate in the conflict resolution procedures of this Treaty. He T-MEC It was proposed by the President of the United States, Donald Trump, and signed by him, Mexican President Enrique Peña Nieto and Canadian Prime Minister Justin Trudeau on November 30, 2018. In addition, Del Rey has lived in our country and first person various labor reforms, especially the one carried out by the Government of Mariano Rajoy in 2012 that now the Executive of Sánchez and the unions want to repeal:

-As an expert in Labor Law, what is your opinion of the ERTEs that are applied in this crisis?

-It is an enormously positive measure. It is to follow the German path, with a more flexible working relationship. You have to judge it very positively, since this crisis has nothing to do with the previous ones. Germany, in the crisis of 2008, saved many jobs with these contract suspension mechanisms. We didn’t have it that developed. From this we have to learn. The ERTE system must have a great development to avoid other more traumatic measures, which does not mean that if a company needs a more drastic measure, it will have to adopt it. If you are in an irreversible situation, no matter how much ERTE you do, it will be impossible to keep “zombie jobs”.

-The current ERTE come from the labor reform of the PP …

-Yes, they have been retouched several times, as in the 2012 labor reform. The issue is that we did not have a tradition to apply it then, as has happened now with teleworking.

-What do you think that the Government and the unions want to overturn that reform?

-I think there is a consensus of the social partners to change some aspects of it, not so much in repealing the reform, because from a technical point of view a rule of more than one hundred articles cannot be repealed since there is no legal system that resists it. A norm that has existed since 1980 has generated an enormously developed, solid and consolidated judicial doctrine that can be partially altered, but cannot be broken at once. You can always review the labor regulations. We have to do a slow and agreed reform once this emergency situation passes and always through social dialogue. Issues such as teleworking and digitization should be addressed.

-Let’s change the subject. What will be your role as referee in the new T-MEC?

-This Treaty has, for the first time, a chapter, 23, on labor issues. When they consider that a company from another of the Treaty countries is not complying with labor standards, then one party can report the other. But conflicts would be between states, not between companies. There is a procedure for reaching an agreement and, if not, there is an arbitration panel. We are part of it five arbitrators who are neither Mexican, nor American nor Canadian.

-The labor chapter is the newest.

-In fact, the novelty is that a specific chapter is established on labor rights that companies in the treaty countries that trade with other countries of the same have to comply with. They have to comply with minimum rights and, if they do not, there is a complaint about the companies that fail to comply.

-Have you had any working relationship with those countries before?

-I studied for several years in the United States and for a time, in the 90s, I analyzed how arbitration and mediation worked in that country. And I was part of what they called rapporteurs. That training helped me later ccollaborate in the formation in our country of the SIMA and later of the mediation bodies in the autonomous communities. In those years it was paradoxical to me that this system was so developed in the US and not in Spain.

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