Labor Newsletter – January 2023

LABOR NEWSLETTER

REM CURRENT NEWS

 

Minimum pensions and voluntary contributions.- Law No. 31670 provides:

• Creates the minimum pension in the Private Pension System: members may set a pension savings goal to manage their individual capitalization account (CIC).
• The minimum pension is optional for the contributor, who defines its amount, which shall not be less than the Basic Consumption Basket. The contributor will have to maintain a «minimum retirement balance» in his CIC at retirement.
• When the contributor reaches the minimum retirement balance, he/she continues to make the mandatory contributions established by law.
• With respect to the surplus, the contributor: (i) may freely transfer it from the CIC to the voluntary contributions account for non-pension purposes; and (ii) may issue negotiable guarantees for an amount equivalent to the surplus, with a maturity of 2 years from its issuance.

REM CASE LAW

Defense of the employee in case of sanctions other than dismissal.- In the X Supreme Jurisdictional Plenary Meeting on Labor and Social Security Matters, the supreme judges agreed to establish, among other criteria, that in the framework of disciplinary proceedings for sanctions other than dismissal, the employer must guarantee the employee’s right of defense from the beginning. Failure to comply with this obligation invalidates the sanction.

Validity of the normative clauses in collective bargaining agreements.- The Supreme Court interpreted that the collective benefits contained in normative or permanent clauses, such as salary increases, bonuses and payments in general to be paid by the employer, do not automatically expire at the end of the agreed term, but are maintained as long as they are not modified by subsequent agreements (Labor Cassation No. 4493-2020 Del Santa).

INSPECTIONS

Mandatory precedent on the principle of lawfulness in administrative proceedings. – The Court of Labor Inspection («TFL») has adopted as a mandatory precedent its criterion on the need for the administration to verify the facts that determine the employer’s liability. This implies:

• That the supervisory and sanctioning authorities extensively evaluate the direct and indirect evidence in the file, carrying out all reasonable actions to satisfy the burden of proof that falls on the administration.
• That they exhaust the means of proof (request background information and documents, grant hearings to those administered, interrogate witnesses, collect statements, practice ocular inspections, among others).
• That they analyze and evaluate all the means of proof presented by the administered party.

It also specifies that the mere allegation of the employer regarding the violation of the principle of legality is not sufficient to disprove the infraction. If the administration has evidence to the contrary, the burden of proof shifts to the employer, who must present its evidence, which must be jointly assessed at the time of the decision.

OCCUPATIONAL SAFETY AND HEALTH

Provisions for the surveillance, prevention and control of the health of workers at risk of exposure to COVID-19.- For further information, access the following link: https://www.estudiorodrigo.com/alerta-laboral-enero-2023/

The employer must identify the hazards and risks of an activity, no matter how remote the damage it generates. – The TFL upheld the sanction against a company for not sufficiently assessing and managing the damage to the eyesight of a female worker performing pruning work, as well as for not providing adequate personal protective equipment («PPE») for such risk.

The worker suffered an eye injury as a result of the impact of a blueberry branch during her pruning work. The company had included in its Hazard Identification and Risk Evaluation (IPER) matrix some risks related to this work, but did not specify the preventive measures for this impact, claiming that it was a remote damage. The TFL stated that, no matter how remote the damage was, and despite the worker’s overconfidence, it should have been included in the IPER, since only in this way could the appropriate prevention measures and PPE be defined.

Approval of a technical standard on PPE.- A technical standard for eye and face protection was approved (Directorial Resolution Nº 001-2023-INACAL/DN approving Peruvian Technical Standard NTP-ISO 19734:2023). The standard develops specific guidance mechanisms on the selection, use and maintenance of such equipment, thus replacing NTP 392.003:1977.

It also supersedes NTP 392.003:1977 (revised in 2014) on the selection and use of goggles, glasses and shields for face and eye protection.