New regulations on rescheduling and division of vacation: Executive Order 002-2019-TR contains the following news:
(i) Vacation in advance: It must be agreed previously and in writing. Vacation in advance must be compensated with those that are acquired when the respective record is completed or with incomplete vacation generated upon termination of the employment relationship.
(ii) Division: Vacation can be divided by agreement between employee and employer as follows:
The division agreement must be reached before going on vacation, it must be in writing and it must indicate the structure of the division and the start dates and end dates thereof.
New requirements for communication of minimum services: In every strike, some positions have to be covered to avoid excessive damage to the employer. The employer inform these requirements to the labor union and the Ministry of Labor with a technical report at the beginning of the year.
Ministerial Resolution 048-2019-TR establishes new requirements for such communication:
(i) The technical report must be signed by a professional with knowledge on the matter.
(ii) If there are no variations in respect of the previous year, the employer may submit a sworn statement stating so. The labor union may also submit its own difference of opinion.
(iii) It specifies the divergent issues, which also require a technical report.
(iv) It establishes a procedure to designate the independent body that settles, reference fees and distribution of the expense between the parties.
Leaves for federations and confederations increase: The Ministry of Labor has increased from four (4) to twelve (12) leaders of Federations with the right to a paid leave (30 days a year per leader, which the Federation may divide among them).
For the confederations, the minimum amount of beneficiaries has increased from ten (10) to twelve (12), a number that can reach up to fifteen (15) leaders depending on the size of the organization.
The provision establishes that the leave may be notified only twenty-four (24) hours in advance, which can be even shorter depending on “unforeseeable causes.”
Additionally, the procedure for employers to deduct labor union dues from its affiliates has been established in more specific terms.
The changes were incorporated by Executive Order 003-2019-TR, which certainly was not subject to a previous debate or was known by the National Labor Council.
New protocols of the National Superintendency of Labor Administration (SUNAFIL) to reduce informal economy: SUNAFIL has approved new protocols to conduct operations based on previous intelligence (collection and analysis of information, territorial intelligence and case construction) to identify situations of informal economy before carrying out an inspection (Resolutions 070-2019-SUNAFIL and 071-2019-SUNAFIL).
It is considered valid that an employee performs labor union duties while they are on sick leave: The Supreme Court concluded that the plaintiff did not act against the provisions of their sick note when they attended a labor union meeting, since such document did not order absolute rest (Labor Case 7779-2018 CALLAO). Based on that logic, it understood that the plaintiff was only unable to go to the workplace, but not to perform other duties, such as labor union activities.
Family allowance convened by collective agreement may not be less than what is legal: The National Superintendency of Labor Administration (SUNAFIL) concluded that the law establishes a minimum basis for payment of family allowance (10% of the minimum salary), so that by collective agreement, a benefit that is lower than the one that is appropriate by direct application of the law may not be convened (Resolution of the Intendant’s Office 014-2019-SUNAFIL/ILM).
In the case analyzed, the employer agreed on granting a family allowance of S/20.00 for each child of the employee, an amount that was not sufficient when the number of children did not reach the legal minimum basis.
The National Superintendency of Labor Administration (SUNAFIL) penalizes an employer for an accident that occurred when the employee had already concluded their work and was outside the company facilities: SUNAFIL penalized a telecommunications company on the basis that the employer should have adopted prevention measures, in spite that the employee had already completed their maintenance work in the facilities of a client (Resolution of the Intendant’s Office 001-2019-SUNAFIL/ILM).
In this case, the employee slipped down the stairs when he was leaving the premises, which resulted in attributing the employer the following non-compliances: i) not having provided training in occupational health and safety related to the duties of the employee; and, ii) not having updated the record of work accidents with the immediate causes of the accident.
If you wish, you can contact members of the labor team of Rodrigo, Elías & Medrano Law Firm.
This bulletin contains the objective description of legal provisions, institutional reports of the Ministry of Labor, jurisprudence of the Constitutional Court and labor-related news. It does not contain the opinion of Rodrigo, Elías & Medrano Law Firm on the matter, thus it cannot be considered as a source of interpretation or response to consultations.