Working Conditions (Hotels and Restaurants) Convention, 1991 (No. 172) - Mexico (Ratification: 1993)

Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

The Committee notes the observations of the Confederation of Employers of the Mexican Republic (COPARMEX) and the Authentic Workers’ Confederation of the Republic of Mexico (CAT), included in the Government’s reports of 2018 and 2020, respectively.

Article 3 of the Convention. National policy for the hotel and catering sector. The Committee notes the Government’s indication that conditions of work for workers in the hotel and catering sector are regulated by the Sixth Title, Chapter XIV, of the Federal Labour Act (sections 344–350), which establishes a specific regime for workers in that sector. With regard to vacations, the Government indicates that the Third Title, Chapter IV, of the Federal Labour Act guarantees that vacations are provided and can be taken, both in cases where the time period for eligibility has been completed (in the case of continuous work) and in cases of non-continuous or seasonal service, where the right of workers to an annual vacation period in proportion to the number of days worked is recognized (section 77). Moreover, the Government indicates that, under the provisions of the Federal Labour Act, while tips (gratuities) are part of the remuneration of workers in hotels and restaurants, they cannot constitute the entire wage. The Government also indicates that the National Minimum Wage Board fixes the occupational minimum wages which must be paid to these workers. However, the Committee notes that the Government does not provide specific information on the application of these provisions in practice. The Committee also notes that COPARMEX indicates in its observations that most enterprises in the hotel and catering sector are subject to collective agreements concluded with workers’ organizations. COPARMEX adds that the benefits granted by these agreements are superior to those established by the Federal Labour Act provisions on vacations and public holidays. It further indicates that pay levels are also established in collective agreements, most of which set pay levels higher than the general occupational minimum applicable to their specialist areas. The Committee further notes that the CAT refers in its observations to various measures adopted to improve the working conditions of all workers, including those in the hotel and catering sector. Such measures include the implementation of the “Sectoral Programme for labour and social welfare 2020–2024”, adopted on 24 June 2020. The priority goal of the Programme is recovery of the purchasing power of minimum wages and incomes to improve the quality of life for workers. The CAT observes that, on account of the new minimum wage policy, minimum wage levels have increased throughout the country. However, the CAT claims that despite such measures, workers in the sector have been seriously affected by the COVID-19 pandemic. In this regard, the CAT emphasizes that large-scale public assistance is needed to ensure the survival of enterprises in the tourism sector and says that such assistance should be extended to the workers concerned. Lastly, the Government refers to the adoption in 2016 of the “Inspection protocol relating to safety and health, training and general conditions of work in restaurants, restaurant-bars and hotels”, aimed at raising awareness of the requirements established by the labour authority to comply with the regulations applicable to workplaces in this sector. The Government states that, between July 2013 and 30 June 2018, a total of 788 inspections were carried out in the sector, 20,695 measures were issued in this regard, and 35,876 workers were the beneficiaries. However, the Committee notes that the Government does not provide information on the type of infringements identified during the inspections or on the penalties imposed. The Committee requests the Government to send detailed, up-to-date information on the application of the Convention in practice, including copies of sectoral and enterprise collective agreements, extracts of inspection reports, judicial decisions and data on the number of workers covered by the measures giving effect to the Convention, disaggregated by sex and age, and also on the number and type of infringements recorded. In addition, in light of the observations of the CAT, the Committee requests the Government to provide information on the measures taken to address the impact of the COVID-19 pandemic in the tourism sector and their effect.

Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

The Committee notes that the Government’s report has not been received. It hopes that the next report will contain full information on the matters raised in its previous comments initially made in 2013.

Repetition

Article 3 of the Convention. National policy for the hotel and catering sector. The Committee notes the Government’s reference to recent amendments to the Federal Labour Act, in particular, section 999 which provides that employers who violate the legislation applicable to hotel and restaurant workers are subject to fines from 50 to 2,500 times the general minimum wage. In this connection, the Committee recalls its previous comment in which it noted that additional measures were needed to ensure in practice that all workers in the hotel and restaurant sector benefit from annual leave with pay, even when their period of continuous service is not sufficient to qualify them for full annual leave (Article 5(3)), and that they receive a basic remuneration irrespective of any voluntary gratuities (Article 6(2)). In its latest report, the Government refers again to sections 79 and 346 of the Federal Labour Act, which give effect to these requirements of the Convention, as well as to relevant jurisprudence confirming that remuneration in the form of tips is to be added to the basic salary and cannot, presumably, make up the whole salary. While noting these explanations, the Committee recalls the previous statistics provided by the Ministry of Labour and Social Insurance and the Statistical and Geographical Institute (STPS–INEGI), as well as the information contained in the study Análysis Económico del Mercado Laboral en el Sector Turístico, published by the Ministry of Tourism in March 2011, which indicate that workers in the hotel and restaurant industry include large numbers of precarious workers who are not provided with adequate legislative safeguards concerning remuneration and paid leave. The Committee considers that, while the reinforced sanctions for infringements of the labour rights of restaurant and hotel workers may effectively improve compliance with relevant laws and regulations, further action may still be needed in order to ensure that all workers in the sector benefit from the protective coverage of the Federal Labour Act both in law and in practice. The Committee requests the Government to keep the Office informed of any additional measures taken or envisaged – possibly as part of a national policy for the improvement of the working conditions of hotel and restaurant workers – to address issues related to the precarious nature of work in the sector, such as the failure to provide annual leave with pay or the payment of hotel and restaurant workers exclusively in the form of tips.

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Article 3 of the Convention. National policy for the hotel and catering sector. The Committee notes the Government’s reference to recent amendments to the Federal Labour Act, in particular, section 999 which provides that employers who violate the legislation applicable to hotel and restaurant workers are subject to fines from 50 to 2,500 times the general minimum wage. In this connection, the Committee recalls its previous comment in which it noted that additional measures were needed to ensure in practice that all workers in the hotel and restaurant sector benefit from annual leave with pay, even when their period of continuous service is not sufficient to qualify them for full annual leave (Article 5(3)), and that they receive a basic remuneration irrespective of any voluntary gratuities (Article 6(2)). In its latest report, the Government refers again to sections 79 and 346 of the Federal Labour Act, which give effect to these requirements of the Convention, as well as to relevant jurisprudence confirming that remuneration in the form of tips is to be added to the basic salary and cannot, presumably, make up the whole salary. While noting these explanations, the Committee recalls the previous statistics provided by the Ministry of Labour and Social Insurance and the Statistical and Geographical Institute (STPS–INEGI), as well as the information contained in the study Análysis Económico del Mercado Laboral en el Sector Turístico, published by the Ministry of Tourism in March 2011, which indicate that workers in the hotel and restaurant industry include large numbers of precarious workers who are not provided with adequate legislative safeguards concerning remuneration and paid leave. The Committee considers that, while the reinforced sanctions for infringements of the labour rights of restaurant and hotel workers may effectively improve compliance with relevant laws and regulations, further action may still be needed in order to ensure that all workers in the sector benefit from the protective coverage of the Federal Labour Act both in law and in practice. The Committee requests the Government to keep the Office informed of any additional measures taken or envisaged – possibly as part of a national policy for the improvement of the working conditions of hotel and restaurant workers – to address issues related to the precarious nature of work in the sector, such as the failure to provide annual leave with pay or the payment of hotel and restaurant workers exclusively in the form of tips.

Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

Article 5, paragraphs 2 and 3, of the Convention. Annual leave with pay and proportionate leave. Further to its previous comment on this point, the Committee notes the Government’s indication that the fact that a number of workers in the hotels and restaurants sector do not benefit from annual leave with pay is due to the significant level of mobility characterizing the sector and the fact that the personnel concerned have not completed the minimum period of service giving entitlement to leave. The Committee however notes that, according to the statistics published by the Ministry of Labour and Social Insurance and the Statistical and Geographical Institute (STPS–INEGI), no less than 48 per cent of workers in hotels and restaurants did not benefit from annual leave with pay in 2005, 42 per cent in 2006 and 44 per cent in 2007. These figures suggest that the precarious nature of work in the sector is in part related to the savings made in the payment of annual leave. The Committee considers that depriving nearly half of the workers in the hotels and restaurants sector from their entitlement to annual leave with pay in a chronic and systematic manner is a phenomenon that is a cause for concern which should be analysed and addressed appropriately. The Committee is bound to recall in this respect that Article 5(3) of the Convention establishes the requirement that, where their contract expires or their period of continuous service is not of sufficient duration to qualify them for full annual leave, the workers concerned shall be entitled to paid leave proportionate to the length of service or payment of wages in lieu. The Committee therefore requests the Government to indicate the measures adopted or envisaged to ensure that all the workers concerned benefit from annual leave with pay or, as appropriate, leave that is proportionate in length, in accordance with this Article of the Convention.

Article 6, paragraph 2. Basic remuneration. The Committee notes the Government’s indications that the number of unpaid workers in the hotels and restaurants sector has increased by 29.5 per cent over the past ten years. It notes that the majority of these workers are engaged in family enterprises and are not covered by the Federal Labour Act (LFT) in relation to the minimum wage, under the terms of section 352 of the LFT. However, the Committee notes that, according to the results of a national employment survey (ENOE) published by the STPS–INEGI, a total of 4,883 unpaid workers not engaged in family enterprises were identified in 2007. Moreover, 36,760 workers were paid only through tips or commissions, without receiving basic remuneration. In this respect, the Committee understands, in light of the provisions of section 347 of the LFT, that workers in hotels and restaurants have to receive basic remuneration, to which tips are added, the amount of which is determined by the parties, where no percentage on orders has been determined previously. Recalling that Article 6(2) of the Convention establishes the requirement that, regardless of tips, the workers concerned shall receive a basic remuneration that is paid at regular intervals, the Committee requests the Government to provide further information on the manner in which effect is given to this Article in law and in practice, as well as copies of collective agreements containing provisions relating to the remuneration of workers in this sector.

Part V of the report form. Application in practice. The Committee notes the detailed statistical data provided by the Government, particularly in relation to the minimum wage rates applicable to bar staff, cooks and room service personnel, as well as the inspections carried out between 2003 and 2008. The Committee requests the Government to continue providing general information on the manner in which the Convention is applied, and particularly information on the number of workers and establishments covered by the measures giving effect to the Convention, copies of relevant collective agreements, recent studies on conditions of employment and of work in the sector, any problems encountered in the application of the Convention, such as problems linked to the financial crisis and the swine flu epidemic, their consequences and the protective measures adopted to provide assistance to the workers concerned, etc.

Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes the Government’s report and the statistical information it contains.

Article 5, paragraph 2, and Article 6, paragraph 2, of the Convention. The Committee notes that, according to the statistical information provided by the Government on the persons employed in hotels and restaurants in 2001, some 471,000 are classified as workers who have had no holidays and around 122,000 as unpaid workers. The Committee requests the Government to provide additional information on the situation of these workers in the light of the provisions of the Convention on the right to annual leave with pay and to basic remuneration, regardless of tips. The Committee also notes section 346 of the Federal Labour Act providing that tips shall be considered to be part of workers’ wages. The Committee recalls in this respect that one of the objectives of the Convention is precisely to ensure that a system of fixed remuneration is not entirely replaced by a system of voluntary gratuities and it requests the Government to indicate whether there are cases in which tips constitute the workers’ only source of pay.

Part V of the report form. The Committee notes that the one of the functions of the Federal Labour Inspectorate is to ensure compliance with the legislation respecting the hours of work, tips and meals of workers in hotels and restaurants. In this respect the Committee requests the Government to provide statistical data on the results of the inspections carried out (violations reported, sanctions imposed, etc.) and other general information on the application of the Convention in practice, including collective agreements and minimum wage rates applicable in the sector, and any other information on working conditions in hotels and restaurants.

Direct Request (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes the detailed information provided by the Government in its first and second reports. It notes, in particular, the statistical data relative to the number of workers employed in the sectors covered by the Convention, namely sickness, incapacity and death resulting from industrial injury, as well as the training programmes organized for workers employed in hotels and restaurants. The Committee requests the Government to continue to provide general information on the manner in which the Convention is applied in Mexico.