Extension of the State of Emergency and restrictions.- The National State of Emergency was extended until May 31, 2021, and the restrictions applicable to each region were defined, depending on the level of alert, until May 9, 2021.
Protection against dismissal of working mothers.- Dismissal due to pregnancy, birth and its consequences or breastfeeding is considered null and void, if the employer does not prove the existence of a just cause for dismissal, even if the worker is hired on a part-time basis or is dismissed during the probationary period.
New assumptions for perfect suspension application.– Two new formulas were incorporated to calculate the ratios of economic impact that would enable employers to resort to the perfect suspension of work provided for in Supreme Decree Nº 011-2020-TR due to the impossibility of applying remote work or paid leave.
Withdrawal of CTS authorized.- Workers may, on a one-time basis and until December 31, 2021, withdraw 100% of their CTS deposits to cover the economic needs arising from the pandemic. The relevant regulatory provisions are pending to be issued.
The Regulation of the Household Workers Law was adopted.– The main provisions are as follows:
(i) In addition to the terms established by Law, the contract must include: (i) Name of the chosen financial entity, personal bank account number and/or Interbank Account Code (CCI); and (ii) employer obligation clause (such as payment of legal bonuses, vacation break, etc., as appropriate).
(ii) The Registry of Household Work is created, under the responsibility of the Ministry of Labor and Employment Promotion, within 120 working days of the Regulation. The contract must be registered within 3 days of being entered into, while any update or modification (including deregistration) must be made within 30 calendar days thereafter.
(iii) A record of registration and deregistration must be delivered to the worker within 3 working days.
(iv) Employers maintain the obligation to register the worker’s beneficiaries in the Registry of Employers of Household Workers, Household Workers, and their Beneficiaries in charge of SUNAT.
(v) Fixed-term contracts may be entered into. The Regulation states that the substitution contract, the emergency contract, the contract for specific services and the seasonal contract are especially applicable, without prejudice to the other regulated modalities.
(vi) To obtain the average weekly hours, for purposes of determining whether the household worker has a part-time contract, the total hours worked in the week are divided by the days worked. Part-time workers are entitled to the proportional share of the minimum living wage.
(vii) Food provided directly by the person employing the household is not considered remuneration.
(viii) Consent for payment by bank transfer must be given in writing. The account may not be in the name of a third party.
(ix) The employer must provide as appropriate: (i) a room for the exclusive and personal use of the domestic worker (separate, private, furnished and ventilated, and equipped with a lock whose key is given to the domestic worker); (ii) access to sanitary facilities, common or private, which are in good condition; (iii) sufficient lighting in accordance with the conditions prevailing in the home; and, (iv) meals of sufficient quality and quantity.
(x) The Compensation for Time Services (CTS) must be paid by deposit with a financial system entity. The worker must report in writing and on behalf of the chosen financial entity, the account number, the CCI and the type of currency. Otherwise, the employer must make the deposit in any of the institutions of the financial system, under the modality of fixed-term deposit for the longest period allowed.
(xi) The CTS accrued and not paid under the old law must be deposited in the depository entity chosen by the worker. The employer must prepare and communicate in writing to the employee a payment schedule, which may not exceed December 2023. The computable remuneration for this payment is the remuneration received by the worker before the Law came into force.
(xii) The worker residing at home is entitled to a minimum rest of 12 continuous hours between the end of one working day and the beginning of the next.
(xiii) The employer must grant facilities for studies, subject to subsequent compensation.
(xiv) The employer must ensure certain training for the benefit of the domestic worker.
There is no null dismissal for joining the union close to the expiration of the contract.- The Supreme Court has ruled that there is a null dismissal when the membership of the trade union organization is communicated close to the expiration date of the last extension of the employment contract (in this case, 8 days). This fact may not reveal the purpose of dismissal and even less that this has occurred because of the membership of the trade union (Labor Cassation Nº 8075-2018-Callao).
It is inconsistent that, in order to determine the merits of the appeal, the Supreme Court requires that the amount be determined personally in cases of plurality of plaintiffs.– The Constitutional Court annulled the decision of the Supreme Court that overruled the merits of the appeal because the amount of the individual claims of the members represented by the plaintiff union did not exceed, each one, the minimum amount required by the procedural rule (100 URP).
The Constitutional Court concluded that the Supreme Court’s reasoning lacked narrative coherence and sufficient motivation, considering that it was a collective claim (Case Nº 00712-2018-PA/TC Lima).
INSPECTIONS
SUNAFIL establishes criteria that must be tested to determine whether there is a violation of the principle-right to equal pay for equal work.- These criteria are: (i) the works being compared must be equal or substantially equal; (ii) there must be a comparator; (iii) the work must be performed in the same establishment; and, (iv) the remuneration of the plaintiff/prosecutor must be less than that of another worker performing equal work (Intendancy Resolution Nº 633-2021-SUNAFIL/ILM).
SUNAFIL establishes that the duty of coordination between companies performing concurrent economic activities in the same work center is different from the duty to monitor compliance with occupational safety and health (OSH) regulations.- In this case, the inspected company did not verify that the contractor company complied with OSH regulations related to the Internal OSH Regulations, training and information on occupational risks and effective supervision. However, the Intendancy considered that this was a breach of the duty of vigilance, and not a breach of the duty of coordination between companies (as had been typified by the Inspector). Consequently, the fine was annulled, considering that the offending conduct detected was not duly typified (Intendancy Resolution Nº 629-2021-SUNAFIL/ILM).
