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Labor Newsletter – August 2019

LABOR NEWSLETTER

REM TODAY

New regulations on granting social benefits. The Regulation on Granting and Payment of Social Benefits of Act No. 26870 has been approved in order to regulate, simplify and standardize granting procedures and conditions of social benefits of temporary disability, maternity, breastfeeding and funeral. This regulation consolidates provisions previously obtained from circular letters of EsSalud Public Healthcare System.

Directive Draft on surveillance camera use. This document sets forth general and special obligations video surveillance shall comply therewith in order to not incur in an inadequate personal data management of people being recorded. The main obligations in labor matters are as follows:

(i) As general rule, the employer does not require workers’ consent, unless video surveillance is conducted under situations not being under its powers (control, task supervision, property protection, occupational safety and health, etc.)

(ii) The employer shall comply with information duties (sings, notices, etc.)

(iii) The principle of proportionality shall be complied therewith (e.g. video surveillance cameras shall not be in places used for rest and recreation, locker rooms, restrooms, cafeterias, etc.)

(iv) Time limits for (general and special) storage of data recorded by video surveillance are given.

(v) Workers are entitled to access to the images related to their misconduct and/or infringements.

(vi) In the event of serious default: (i) a digital copy of the images shall be attached to the notice of dismissal; and (ii) third party’s right shall be preserved (anonymization, blurring, etc.)

In the event of approval, this document shall be enforceable.

REM CASE LAW

Proceed to impose disciplinary measures of warning or suspension without pay on workers under strike declared illegal. The Supreme Court has established as case law that the business interruption by a union, even though the Administrative Labor Authority has previously declared the illegality in its execution, results in authors being liable to a disciplinary action thereunder, notwithstanding salary discount per days not worked. Furthermore, it stated that in no case the disciplinary measure imposed on strikers may be dismissal (Labor Cassation Case No. 25646-2017 Arequipa).

REM INSPECTIONS

Vacation days shall be attributed to the longest period even it is due. In the case analyzed by the Deputy Superintendency of Metropolitan Lima (ILM), the employer argued that the company only owed the salary and compensation payment for vacation corresponding to the first year of employment (paid upon termination), so vacation days granted in subsequent years corresponded to each period effective on the date such benefit was earned.

However, pursuant to Deputy Superintendency’s Resolution No. 787-2019-SUNAFIL/ILM, ILM stated that paid vacations cannot only be attributed to the effective period as it is necessary to cover all due periods. Only the existing balance, upon having covered the due periods, may be attributed to the effective period. Under this criterion, ILM determined that in each year of employment there were pending days that have to be settled.

Such resolution is not consistent with the regulatory criteria adopted as per Superintendency’s Order No. 167-2019-SUNAFIL, whereby it is set forth that “no pay of effective vacations is remedied by the employer through such settlement for the periods referred to in Section 23 of the Legislative Order No. 713”. In this sense, the salary pay and compensation payment for vacation release the employer to grant rest days corresponding to due vacations.

SAFETY AND HEALTH IN THE WORKPLACE

The Occupational Medical Examination Registry (REMO) shall have workers’ aptitude qualification. No having a REMO or not keeping it updated represents a serious violation in matters of occupational safety and health.

Although regulations on occupational safety and health set forth employers’ obligation to have a registry of this kind, there is no a default or reference format. The regulation approving the reference formats with the minimum information registries of the Occupational Safety and Health Management System must have only recognizes 10 formats, which REMO is not included therein.

However, as per the duty of confidentiality applicable to the occupational medical examinations, this registry should include workers’ aptitude qualification but not their medical results in details, and be updated regarding worker’s periodical medical examination.

LABOR TEAM

If you wish, you can contact members of the labor team of Rodrigo, Elías & Medrano Abogados.

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 Abogados on the matter, thus it cannot be considered as a source of interpretation or response to consultations.