Labor Newsletter – May 2019

LABOR NEWSLETTER

REM CURRENT NEWS

New Protocol that regulates the control of compliance with equal play obligations.- The main aspects to be inspected by SUNAFIL in equal pay matters from July 1, 2019 are the following:

Complementary guidelines for the objective assessment of job positions and preparation of table of categories and functions.- A new Methodological Guide provides in detail the steps to assess job positions based on a point-based valuation method, and to prepare a table of categories and functions

It should be noted that these guidelines are referential only and, therefore, are not mandatory for employers.

REM CASE LAW

The entire National Labour and Procedural Relations Board (2019).– On May 23 and 24, the Labour Superior Court Judge met at the national level and adopted the following agreements applicable to the private sector:

(i) In cases of unconstitutional, uncaused or fraudulent dismissal:

• The compensation claim for loss of earnings shall include the earnings not received, after deduction of the income affected by the former worker for services rendered to third parties during the period of cessation, as well as the expenses incurred in case of continuing to work.
• The existence of moral damage as well as the right to work should not be presumed, unless other fundamental rights (honour, dignity, etc.) are violated. Except for such cases, moral damage must be proven by direct or indirect evidence.

(ii) The administrative conciliation act is not required in cases of compensation for damages, when the plaintiff is the employer.

The same rules of procedure as in the dismissal must be applied when written warning and suspensions are imposed.- The Supreme Court has established that in order to impose a disciplinary sanction other than dismissal, the employer must grant the same period provided in the dismissal procedure. So, the worker might exercise his right of defence (Labour Cassation No. 4494-2017 LIMA).

REM INSPECTIONS

SUNAFIL issued new regulatory criteria applicable to labour inspections.- In May, SUNAFIL issued three Superintendence Resolutions that, together, establish twelve new regulatory criteria that must be respected by the bodies with resolute competence within the inspection system. The criteria are summarized below:

SECURITY AND HEALTH AT WORK

New SUNAFIL directive for the evaluation and qualification of the annual audit reports of the Occupational Health and Safety Management System (SGSST) of mining sector companies.-

The most important aspects of this document are the following:

(i) The report is prepared according to each Mining Unit.

(ii) The report must be submitted to the Inspectorate for the Supervision of the Inspection System (INSSI) from SUNAFIL within the first 5 business days of April of each year.

(iii) INSSI will verify the formal and substantive aspects related to compliance with Annexes 1 and 2 of Supreme Decree No. 074-2009-EM and the regulatory and technical aspects of the processes of each Mining Unit.

(iv) Any observation must be corrected by the owner of the mining activity within 5 business days.

(v)  The omission in the presentation of the report or the lack of correction of the same document is qualified as a minor infraction in the area of ​​occupational safety and health. Likewise, if the annual audit of the SGSST is not performed, this would qualify as a major infraction.

Mental health exams may be mandatory according to occupational health and safety standards.- The recent Law No. 30947 reaffirms that the medical evaluation of mental health is voluntary, except for certain victims such as occupational medical exams provided by law.