Labor Newsletter – December 2022

LABOR NEWSLETTER

REM CURRENT NEWS

New value of the Tax Unit (UIT).- The value of the UIT during the year 2023 shall be S/ 4,950.00.

Draft Regulation of the new Telework Law.- The draft regulation of the new Telework Law was subject to comments and recommendations from employers, workers and citizens in general until January 1st. The most important aspects of this draft are the following:

• It does not allow the teleworker to assume the totality of expenses related to equipment, internet service and electrical expenses, despite the fact that the Law authorizes the agreement contrary to the general rule of compensation of expenses.
• It establishes specific rules and minimum values for the compensation in favor of the teleworker for the use of equipment, internet service and electricity consumption.
• It allows teleworking from abroad, in which case the parties must agree the specific conditions and apply the corresponding immigration and labor rules.
• In addition to the minimum content required by the Law, any contract must include: (i) the obligations of the employer; (ii) rights and obligations of the teleworker; (iii) protection measures against sexual harassment; (iv) occupational health and safety measures; (v) information security measures; (vi) security measures and maintenance of equipment provided; (vii) reasonable accommodation in case of teleworkers with disabilities.
• Establishes criteria for evaluating the request for change of work mode by the worker to opt for teleworking or return to face-to-face work.
• It specifies that in case of change of the usual place of teleworking, applies the self-assessment of identification and risk assessment of the new usual place of teleworking.
• For an accident at work to be configured, the teleworker must prove that the injury or damage occurred in the workplace, during working hours and with the work tools used for their work.

REM CASE LAW

Time limit for the application of labor sanctions other than dismissal.- The Supreme Court reiterates the importance of imposing labor sanctions within a reasonable period of time as soon as they are known, in order to comply with the principle of immediacy. In the specific case, it was specified that the non-attendance of workers derived from a strike that has been declared unlawful by the administrative labor authority, must be punished in a timely manner -with a sanction less than dismissal- independently and without the need to wait for the decision of the illegality by the authority (Labor Cassation Nº 24274-2019 Lambayeque).

INSPECTIONS

The Court of Labor Inspection (“TFL”) clarifies the scope of the principles of presumption of lawfulness and material truth in administrative proceedings.- In the analyzed case, the employer relocated a female worker to a work center located in another region of the country, and based such decision on the closure of the area where she worked, which was communicated to the Superintendence of the Securities Market (“SMV”). In the opinion of the lower courts, such conduct qualified as an act of hostility.

In this regard, the TFL stated that the principle of presumption of lawfulness may only be undermined if the commission of misconduct typified in the current legal system is reliably proven, (…) through the evidence gathered by the authority in charge of the inspection procedure.

In turn, it specified that there is a relationship between said principle and the principle of material truth, so that only with the clarity of the commission of the unlawful acts, obtained through the evidential actions (principle of material truth), the administrative authority shall be able to contradict the presumption of legality imposed by the law (principle of lawfulness), in order to deploy the sanctioning power against its author (Resolution Nº1086-2022-SUNAFIL).

Thus, the TFL concluded that it was not appropriate to initiate the sanctioning procedure because the lower courts had not corroborated and were not convinced that the employer had communicated the objective cause of the decision to the SMV, which was contrary to the principles indicated above.

 

 

OCCUPATIONAL HEALTH AND SAFETY

 

The authority may only apply the aggravating circumstance of the fine if it finds the death or disability of the worker, as stated by the TFL through a recent resolution in which it partially annulled the fine against a company for not adopting the necessary preventive measures to avoid an accident.

The accident occurred when a worker was moving concrete blocks, suffering a contusion in his right hand. Due to this, the authority not only held the company responsible for the lack of safety conditions, but also applied the aggravating circumstance of Article 48.1-C of Supreme Decree Nº 019-2006-TR, which consists of calculating the fine based on the total number of workers of the company and not only on the affected worker. The TFL ruled out the application of such aggravating circumstance because it is required that the authority has verified the death or disability (partial or total permanent) of the worker, which did not occur in this case because there was no document in the file to prove it.