Extension of the State of Emergency and new restrictions.- The State of National Emergency was extended until February 28, 2021 and new restrictions were established depending on the level of alert of each region, valid from January 31 to February 14, 2021. Some of these restrictions are summarized below:
The Judiciary suspends procedural deadlines.- The Executive Council of the Judiciary has ordered the suspension of procedural deadlines from February 1 to 14, 2021 in the courts located in the departments of Lima (including Callao), Ancash, Pasco, Huánuco, Junín, Huancavelica, Ica and Apurímac (regions of extreme alert level).
During this period, all notifications must be made electronically and hearings must necessarily be held virtually.
Limits are set to the ius variandi power held by the employer.- SUNAFIL concluded that the modification of the workplace made by the employer shall be valid provided that: (i) it results from the functional need of the company (reasonableness of the measure); (ii) the magnitude of the change is taken into account; and, (iii) the worker does not suffer financial or moral damages.
The authority established that it shall be up to the employer to prove the reasonableness and functionality of the change of the place of services. If this is not proven, the measure shall be invalid, without it being irrelevant whether the worker proved the damage caused by the change.
Changes to the Regulations of the Occupational Safety and Health Law.- The most relevant changes introduced by Supreme Decree No. 001-2021-TR are the following:
(i) The functions of the Occupational Safety and Health Committee (CSST) are expanded.
(ii) The choice of workers’ representatives to the CSST may be in person or not in person.
(iii) In the absence of consensus on the election of the chairman of the CSST, his appointment is decided by lot.
(iv) Additional functions are attributed to the Occupational Safety and Health Sub-Committees, although they remain optional.
(v) The worker is empowered to organize the electoral process of the workers’ representatives before the CSST when there is no union organization or when the union organization fails to comply with the deadlines or does not call for elections.
Deficiencies in the Internal Occupational Safety and Health Regulations (RISST) are only attributable to the worker.- SUNAFIL has ruled in a recent statement in which it sanctioned a mining company for not having a RISST in accordance with the law.
The authority pointed out that, although the approval of the RISST is exclusively to the Occupational Safety and Health Committee, it is the employer who is administratively responsible for such non-compliance. Therefore, the length of the document and the fact that there is no legally established minimum content are no justification for omitting the occupational safety and health standards of all the processes and activities carried out in the company.
New normative criteria adopted by SUNAFIL.- Among these, the most relevant is that the representatives of the workers or the trade union organization may participate in the inspections. This may occur preferably (not necessarily jointly) when:
– The matter denounced is complex.
– The complaint was filed by the workers’ representatives or by the representatives of the trade union organization.
– The worker concerned is unionized.
– The complaint is related to the alleged infringement of collective rights.
The participation of the workers’ representatives or of the trade union organization during any of the inspections does not imply that the inspector considers their participation in all the proceedings.
