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Labor Newsletter – February 2019

LABOR NEWSLETTER

REM CURRENT NEWS

New regulations on vacation advancement and fractionation.- The Supreme Decree No. 002-2019-TR contains the following news:

(i) Advance: You must agree in advance and in writing. Advance vacations must be compensated with those acquired by fulfilling the respective registration or with the truncated vacations generated at the time of termination.

(ii) Fractionation: Vacations may be divided by agreement between worker and employer as follows:

  • 15 calendar days in periods of 7 and 8 consecutive days.
  • 15 calendar days in periods of less than 7 days.

The fractionation agreement must be prior to the enjoyment, be recorded in writing, and indicate the structure of the fractionation as well as the dates of its beginning and end thereof.

New requirements for the communication of minimum services.- In any strike, some positions have to be filled to avoid excessive damage to the employer, for which purpose he communicates these damages to the Union and the Ministry of Labor, with a technical report, at the beginning of the year .

Ministerial Resolution No. 048-2019-TR sets out new requirements for said communication:

(i) The technical report must be signed by a professional with knowledge in the field.

(ii) If there are no modifications from the previous year, the employer may submit an affidavit reporting this. The union may also present divergence.

(iii) Specify the matters of divergence which also require a technical report.

(iv) A procedure to designate the independent body to settle reference fees and the distribution of expenditure between the parties is established.

Licenses for federations and confederations are extended.- The Ministry of Labor has increased from 4 to 12 the number of  leaders of Federations entitled to paid leave (30 days a year for each one, which the Federation can distribute among them).

For confederations, the minimum number of beneficiaries has increased from 10 to 12, a number that can reach up to 15 leaders depending on the size of the organization.

The regulation provided for an anticipation of just 24 hours for the license requirement which may even be less “due to unforeseeable reasons”.

Additionally, the procedure for employers to deduct union dues from their members has been further clarified.

The changes were introduced by the Supreme Decree No. 003-2019-TR, which was certainly not the subject of previous debate nor of knowledge of the National Labor Council.

New SUNAFIL protocols to reduce labor informality.- SUNAFIL has approved new protocols to carry out operations based on prior intelligence (information gathering and analysis, territorial intelligence and case construction), to identify situations of labor informality before initiating an audit (Resolutions No. 070-2019-SUNAFIL and 071-2019-SUNAFIL).

REM CASE LAW

It is considered valid for workers to exercise union activity while they are on a medical rest.- The Supreme Court concluded that the plaintiff did not act against the provisions of his medical rest, when he attended a union meeting, because said document did not prescribe absolute rest (Labor Cassation No. 7779-2018 CALLAO). Under this logic, he understood that the plaintiff was only unable to go to the workplace; but not to perform other functions, such as trade union activities.

REM INSPECTIONS

The family allowance agreed by collective agreement may not be less than the statutory one.- SUNAFIL concluded that the law establishes a minimum base for the payment of the family allowance (10% of the minimum living wage), so that by collective agreement a benefit may not be agreed less than the one that corresponds by direct application of the law. (Intendency Resolution No. 014-2019-SUNAFIL / ILM).

In the case under consideration, the employer agreed to grant a family allowance amounting to S/20.00 for each child of the worker; amount that was insufficient when the number of children did not allow to reach the legal minimum.

SAFETY & HEALTH IN THE WORKPLACE

SUNAFIL sanctions an employer for an accident that has occurred when the worker has finished his work and is outside the company’s premises.- SUNAFIL sanctioned a telecommunications company, on the grounds that the employer should have adopted measures despite the fact that the worker had already completed his maintenance work on the premises of a client (Intendancy Resolution No. 001-2019-SUNAFIL/ILM).

In this case, the worker slipped down the stairs when he was living the premises, which led to the employer being attributed the following breaches i) failure to grant training in occupational safety and health related to the work of the worker; and, ii) failure to update the register of accidents at work with the immediate causes of the accident.