Labor Newsletter – July 2022

REM CURRENT NEWS

 Extension of the State of Emergency.- The State of National Emergency was extended until August 28, 2022.

Amendments to the Regulations of the Law of Collective Labor Relations.- The main modifications introduced by Supreme Decree Nº 014-2022-TR are as follows:

• Incorporates independent employers within the scope of the Collective Labor Relations Law.
• It allows the direct affiliation of employers to federations and confederations.
• Creates new types of union organizations (for example, unions of groups of companies, productive chain or subcontracting networks).
• Extends the scope of union privileges.
• Incorporates new acts of mandatory concurrence.
• Approves the list of minimum information to be provided by the employer for collective bargaining.
• Prohibits the unilateral extension of the benefits of the collective bargaining agreement.
• Modifies the divergence procedure.
• Eliminates the preference for the list of minimum services prepared by the employer.
• Establishes that the bargaining level may be submitted to arbitration.
• Provides that optional arbitration is an exclusive right of the unions.
• Incorporates the obligation of the employer to prohibit the performance of work by striking personnel.
• Eliminates the obligation of having previously declared a breach by the employer in order to declare a strike.
• August 6th has been declared as a national holiday to commemorate the Battle of Junin (Law No. 31530).

REM CASE LAW

Employers are not entitled to authorize discounts exceeding 60% of their remuneration.- The Constitutional Court (“TC”) established that the employer must not make discounts on remunerations when these exceed the maximum percentage allowed by Article 648, paragraph 6 of the Code of Civil Procedure (even when the employer had given his authorization).

In the specific case, the Constitutional Court concluded that the discounts authorized by the employer to pay the installments of a loan from a Savings and Credit Cooperative were unconstitutional, since they endangered the subsistence of the employer and his family by withholding up to 100% of his monthly remuneration (Exp. No. 02220-2019-PA/TC Ica).

The filing of a union complaint does not constitute proof of the null dismissal.- The Supreme Court specified that the dismissal shall not have a repressive nature when the complaint or lawsuit on which the nullity of the dismissal is based has been filed by the union organization to which the plaintiff belongs. In this sense, the appeal of the defendant company was declared well-founded after verifying that the complaint against the employer filed before the Labor Administrative Authority was filed by the union and not by the dismissed employer (Labor Cassation Nº 15136-2021 Lima).

INSPECTIONS

 The lack of express pronouncement about the evidence violates the right to due motivation.- The Court of Labor Inspection (“TFL”) declared the nullity of the second instance resolution because there was no evidence of a correct evaluation and analysis of the evidence filed by the inspected subject (Resolution No. 569-2022-SUNAFIL/TFL).

Regarding the application of the duty to state reasons in the issuance of administrative resolutions, the TFL specified that, in the justification of the decision adopted by SUNAFIL, the evaluation of the evidence and/or arguments filed by the administrative party must be explained, as a guarantee of the due administrative procedure.

In this sense, the TFL establishes that the resolution may not be limited to stating, in a general manner, that the periods and amounts do not coincide with those observed in the infraction report, because it is necessary to adequately assess the accredited payments and specify the reasons why they do not evidence compliance, making a detailed analysis of them.

OCCUPATIONAL SAFETY AND HEALTH

The following are among the new activities added by Supreme Decree Nº 009-2022-MIMP.- Driving any kind of vehicle, activities over 1.80 m. high, lifting loads over 15 kg, any kind of domestic work, temporary migration of the adolescent without family accompaniment or safe residence, and work with transit between international borders.

There is no duty to investigate damages to health if there is no work accident.- This is what the TFL ruled, through a resolution in which it leaves without effect the sanction imposed on a company for not investigating damages to the health of a former employer who did not suffer a work accident.

The employer reported an alleged accident during his work (lower back injury). However, in the procedure, a common illness (acute lumbago and other) was noted, without the inspectors being able to reliably determine the causal relationship with his duties. Faced with this, the TFL pointed out that the company was not obliged to carry out an investigation of this type, especially when the employer failed to comply with the internal procedure for reporting these events.