Labor Newsletter – August 2021

REM CURRENT NEWS

REM CURRENT NEWS

Extension of the State of Emergency and Health Emergency.- The State of National Emergency was extended until September 30, 2021, and the Health Emergency was extended from September 3, 2021 for a term of 180 days.

The age for early retirement in the Private Pension System is standardized.- With this amendment, any member over 50 years of age, regardless of their sex, is eligible for early retirement either because of unemployment or because of entitlement to a pension equal to or higher than 40% of the average of the remunerations received and income declared during the last 120 months. For each type of early retirement, the other requirements continue to apply.

REM CASE LAW

The Supreme Court establishes rules on the representativeness of union organizations in collective bargaining.- The Supreme Court has interpreted Article 9 of the Sole Ordered Text of the Law of Collective Labor Relations in the following terms (Labor Cassation Nº 15145-2018 Moquegua):

• As a general rule, the union organization that members the absolute majority of the workers in the area has the legitimacy to negotiate on behalf of its members, minority union organizations, their members and non-unionized workers.
• Notwithstanding the above, the minority unions may not be excluded from the negotiation by the majority union, which has the duty to receive all the proposals of the union minorities and to reach the best possible agreement on all interests.
• The rule of majority representation may not empty the essential content of the right to freedom of association of minority unions. In the event of an inter-union conflict between them and the majority union, they have the right to conduct individual negotiations with the employer.
• The minority union that had started negotiations prior to the existence of the majority union shall have the right to continue and terminate the collective bargaining procedure. The same rule shall apply if the majority union initiates negotiations with lower benefits than those agreed upon in previous collective bargaining agreements by the minority union.

INSPECTIONS

The Labor Inspection Court (TFL) issued its first administrative precedent of mandatory compliance.- By Decision of the Plenary Chamber Nº 001-2021-SUNAFIL/TFL-FIRST CHAMBER, the TFL has established a binding precedent with regard to three matters: (i) nature of infractions to the inspective work, (ii) submission of information required by inspectors; and (iii) amendment of atypical workday during the pandemic resulting from COVID-19.

The most relevant aspects are summarized below:

OCCUPATIONAL SAFETY AND HEALTH

The fine for an occupational accident whose sanction did not coincide with the facts verified by the inspector is annulled.- The TFL recently annulled a fine of more than S/.300,000.00 imposed for an occupational accident, due to the fact that the legal grounds of the authority did not coincide with the facts verified by the labor inspector.

In this case, the inspector had verified that the accident occurred because the machinery operated by the worker did not have the relevant signs and instructions for its use. However, the legal basis of the infraction report – confirmed by the highest authorities – referred to the non-compliance with Article 69 (d) of the Occupational Safety and Health Law, which requires the employer to have instructions, manuals, hazard warnings or other preventive measures in Spanish and in simple language. For the Court, this inconsistency violated the duty to state reasons, and therefore the fine resolution was declared null and void.