Draft of Sexual Harassment Prevention and Sanction Law Regulation
The most relevant amendment proposals are as follows:
(i) Committee against Sexual Harassment: Employers contracting more than 20 workers will establish a joint Committee to investigate and issue recommendations in terms of sexual harassment. In case of less than 20 workers, functions of such Committee will be assumed by a Person-in-Charge.
(ii) Investigation Process: The Committee or the Person-in-Charge will perform the aforementioned functions, while Human Resources will receive complaints and adopt protection, punishment and preventive measures. Both authorities will receive annual training specialized in sexual harassment prevention and procedure.
(iii) Notice to the Ministry of Labor and Employment Promotion (MTPE): It is mandatory to notice the MTPE that a complaint has been received and the protection measures has been taken for the alleged victim.
(iv) Outsourcing Companies and Staffing Agencies: Specific measures are established when sexual harassment is committed by/against personnel of outsourcing companies or staffing agencies.
Control Protocol Draft of Equal Pay Law and its Regulation
The document sets forth the following in matters of equal pay:
(i) It is not necessary to detail workers’ salary in pay structure and job description chart or wage policy.
(ii) The job evaluation methodology may be determined by the employer provided that it is based on objective criteria.
(iii) Equal Pay Guide prepared by the MTPE is referential only.
(iv) In terms of equality at work, from July 1, 2019, inspectors will verify only the following: pay structure and job description chart, wage policy, and proper communication of such policies to workers.
Provided that employee relocation is communicated, the employer must also inform about new applicable work conditions. The Supreme Court concluded that the employer acted deceitfully by ordering the employee relocation without informing the tasks to be carried out or whether the employee’s salary would vary (Labor Cassation Case No. 4735-2017 Lambayeque).
By virtue thereof, the non-attendance at the new workplace was caused by not being acknowledged of the possible working conditions. Consequently, the dismissal (for alleged job abandonment) was estimated as fraudulent.
The Internal Work Regulations (RIT) cannot establish the requirements to grant union licenses. The fined company added in its RIT a general provision establishing that any license (type not being specified) shall be supported by pertinent substantiating documents.
The National Superintendency of Labor Control (SUNAFIL) stated that the RIT provision restricts the right to freedom of association by making the grating of union licenses conditional on the presentation of substantiating documents. In its opinion, “it is enough for the trade union to inform the line of business as no regulation or case law criterion establishes that said communication should be detailed and even less that this should be supported by substantiating documents”. Therefore, SUNAFIL concluded that, upon no amendment to the corresponding provision of its RIT, the company committed a serious violation consisting of the non-compliance of the provisions by giving facilities to exercise freedom of association (Superintendency’s Order No. 073-2019-SUNAFIL/ILM).
SUNAFIL fined a mining company S/100,000.00 for not washing regularly the worker’s coveralls. The company do not prove to wash regularly coveralls between 2014 and 2017; although workers were permanently in contact with minerals and other toxic substances.
SUNAFIL concluded that the company did not maintain adequately the personal protection equipment, but such responsibility was given to workers instead despite that occupational safety and health regulations set forth that the mining company shall bear all expenses related to safety and health at work (Superintendency’s Order No. 120-2019-SUNAFIL/ILM).
If you wish, you can contact members of the labor team of Rodrigo, Elías & Medrano Abogados.
This bulletin contains the objective description of legal provisions, institutional reports of the Ministry of Labor, jurisprudence of the Constitutional Court and labor-related news. It does not contain the opinion of Rodrigo, Elías & Medrano Abogados on the matter, thus it cannot be considered as a source of interpretation or response to consultations.
