Labor Newsletter – August 2022

LABOR NEWSLETTER

REM CURRENT NEWS

1. Extension of the State of Emergency and Health Emergency and other provisions.-

The State of National Emergency was extended until September 30, 2022, and the Health Emergency was extended for a period of 180 calendar days from August 29, 2022.

Likewise, among other amendments, Supreme Decree Nº 108-2022-PCM leaves without effect the express legal recognition of: (i) the obligation to have 3 doses of vaccination against COVID-19 to perform on-site work and (ii) the application of the suspension of the work contract provided for in Article 12, paragraph ll), of Supreme Decree 003-97-TR.

2.Conclusion of the period of adaptation to the new outsourcing restrictions.-

The deadline for employers to adapt their contracts and business figures to the amendments made by Supreme Decree Nº 001-2022-TR (“DS 001”) ended on August 22, 2022. From August 23, the new restrictions are enforceable by the labor authorities.

3. New infringements regarding outsourcing.-

New infringements are amended and/or incorporated to the Regulations of the General Labor Inspection Law, in order to sanction non-compliance with the outsourcing rules, as amended by DS 001:

Serious infringements

–       Failure to comply with the minimum content that must be included in the employment contracts of the outsourcing company’s employees. –       Failure to comply with the obligation to inform (either the outsourcing company or the main company, as appropriate) provided for in Article 6 of Law No. 29245 and related regulations.

Very serious infringements

–       Use the figure of outsourcing for the development of core activities. –       Use the figure of outsourcing for the development of activities other than core activities. –       Use the figure of outsourcing as a simple provision of personnel. –       Extinguish the work contracts of workers displaced for the development of nuclear activities, for causes related to the adaptation of the modifications of the DS 001, unless the main company hires such workers directly.

4. New leave for breast and cervical cancer early detection exams.-

Working mothers are entitled to one day of paid leave per year for breast and cervical cancer early detection exams (Law Nº 31561).

5. New provisions for the retirement of civil construction workers.

In order to access a retirement pension, these workers must meet the following requirements, according to Law Nº 31550:

• Have reached 55 years of age.
• To prove 180 months of service with contributions to a pension system, of which at least 72 months must have been rendered in the civil construction activity.

To calculate the amount of the retirement pension, the last 60 remunerations received are considered.

REM CASE LAW

1. New guideline for the reduction of the indemnity for damages.-

The Supreme Court has established that a reduction of at least 50% of the amount awarded as compensation is applicable when the damages derived from the work accident or illness are not the sole and exclusive consequence of the employer’s conduct, but the worker has objectively contributed to its occurrence (Case Nº 1866-2021 La Libertad).

2. The power of detection of alcohol and drugs in the workplace is required.-

The Supreme Court has established that the employer has the power to perform random and unannounced alcohol and drug tests at any place in the workplace, as a measure to prevent risks to the safety of workers. However, it specified that this measure shall be invalid if such control is carried out in the workers’ homes, even if they are provided by the employer, since it does not comply with the limits of reasonableness and proportionality.

In the analyzed case, the Supreme Court recommended the defendant employer to modify the alcohol and drug consumption prevention policy, specifying that these shall not be carried out in the houses inside the mining camp (Laboral Cassation Nº 09636-2019 Lima).

INSPECTIONS

1. Rules for the inspection of labor outsourcing are published.-

SUNAFIL has approved the Protocol for the Inspection of Labor Outsourcing, by means of Superintendence Resolution Nº 428-2022-SUNAFIL, the most relevant aspects of which are as follows:

• Simultaneous inspection orders shall be issued to the main company and to the outsourcing company, which must be assigned to the same inspectors.
• During the inspection visits, the labor inspector shall be accompanied – preferably – by a representative of the workers.
• The inspection orders may include sub-subjects other than labor outsourcing, such as remuneration, bonuses, etc.
• The labor inspector may request, among others, the following information:

List of clients.

List of outsourcing contracts.

List of equipment and machinery owned or managed by you.

Communication made to the personnel about their displacement.

Attendance control record.

Rental contracts for equipment or machinery.

• The infringement for “using outsourcing for activities that are part of the core business” results in the main company incorporating the outsourced workers to its payroll (an obligation that shall also be audited).
• The infringement for “terminating the employment contracts of the workers who have been displaced for the development of activities that form part of the core business, for causes related to the adaptation to DS 001-2022-TR” may not be remedied.
• In order to determine the joint and several liability between the main company, contractor and subcontractor, the labor inspector considers that: (i) such liability extends for one year after the displacement, (ii) it does not include obligations of conventional or unilateral origin and (iii) joint and several liability in matters of Complementary Risk Work Insurance is governed by its special regulation.

SUNAFIL has created a “Specialized Team of Labor Inspectors on Outsourcing of Services”, in order to fully comply with the purposes of the inspection in this matter (Superintendence Resolution Nº 433-2022-SUNAFIL).

2. The requirements to proceed with the appeal for review are specified.-

The Labor Fiscal Court (“TFL”) establishes as binding precedent that, in order for the appeal for review to proceed, the following must be complied with:

• At least one violation typified and qualified as very serious must be questioned.
• This questioning must necessarily be based on the non-application, misapplication or erroneous interpretation of the rules governing labor law, or on the unmotivated deviation from a binding precedent of the Federal Labor Court.

The TFL shall declare the inadmissibility of the appeals for review that do not expressly question the very serious infringement, either indirectly -when no reasoning that could allow to deduce it is raised- or directly (Full Chamber Resolution Nº 003-2022-SUNAFIL/TFL).

OCCUPATIONAL SAFETY AND HEALTH

The TFL approved the following binding precedent in Full Chamber Resolution Nº  004-2022-SUNAFIL/TFL:

• The obligation of prolonged overnight stays on the employer’s premises, by way of quarantine in the framework of the COVID-19 pandemic, qualifies as labor hostility for being contrary to the fundamental rights of workers and having been implemented unilaterally.

• In the case under analysis, the TFL reached this conclusion because:

The obligation was imposed unilaterally by the employer.

Overnight centers were “improvised” and did not comply with the required hygiene and safety measures.

Workers who did not agree to stay overnight would be subject to a paid leave of absence subject to subsequent compensation. This compensation would have a pejorative effect on the workers because it would fall on an already high cumulative working day (11 hours a day), which contravenes the case law on the maximum working day and disproportionately threatens the workers’ rest time.

The measures adopted by the employer in the face of the risk of COVID-19 infection must observe the following:

The maximum working day protection test (especially for workers in the mining regime).

The duration of the Health Emergency.

The restrictions of the geographical and socioeconomic scope of the place where the measures are applied.