REM CURRENT NEWS
Modification of the standard that regulates the payment of the family allowance.- In addition to the previously regulated cases, workers with one or more children over 18 years of age, with severe disability, duly certified, are also entitled to receive the family allowance (Law Nº 31600). The issuance of the Regulation is pending.
New leave for death of family members.- Workers are entitled to 5 calendar days leave for the death of their spouse, parents, children and siblings (Law Nº 31602). When the death occurs in a different geographical location from where the work center is located, the leave is extended up to the term of the distance. The issuance of the Regulation is pending.
REM CASE LAW
Guidelines to prove intimidation in the termination of the employment contract.- The Supreme Court has established that the employee who alleges the existence of intimidation as a cause of nullity of the document that terminates the employment relationship by his will, must prove that the employer has made a threat of an antijuridical nature consisting of an imminent and serious damage, which falls on the victim, his relatives or his property; and that this produces the vice of his consent because it is capable of diminishing his will.
It also states that for intimidation to be effective, the employer’s purpose of intentionally manipulating the employee’s will by creating in the latter a feeling of fear, incapacity or dread must be proven; the statements made by the plaintiff in the proceeding are not sufficient for this purpose (Labor Cassation Nº 02197-2020 Lima).
Reinstated workers are not entitled to profit sharing for the period of time they have not worked.- The Supreme Court has interpreted that the legal participation in the company’s profits is not included within the scope of the right to accrued remunerations that the law recognizes to those workers who are reinstated due to null dismissal. The supreme magistrates clarify that this concept is not recognized in the labor legislation as a remunerative one and, at the same time, this exclusion is correct since only those who contribute with effective work to the positive results of the business activity must be participants of this amount (Labor Cassation Nº 34683-2109 Lima).
INSPECTIONS
New precedents of mandatory compliance in the areas of continuing violations, occupational safety and health (“OSH”) supervision, maternity leave and non bis in idem.- The following is a summary of the most relevant aspects of the precedents issued by the Labor Inspection Court (“TFL”):
| Full Chamber Resolution | Matter | Criteria | |
| 010-2022-SUNAFIL/TFL | Continued infringements | – It is configured when there is more than one conduct that separately would constitute an infraction, and that infringes the same standard or of a similar nature, with respect to the same workers, in this a way that the employer acts with a lasting (constant) shall over time.
– The issuance of consecutive inspection orders on these facts violates the principle of reasonableness and there is an excess of punishment. – In these cases, the administrative sanctioning procedures must be accumulated when the competence corresponds to a single regional intendancy. If it is supraregional, each intendancy must evaluate its competence and continue with the respective procedures independently. – The type of infraction to be applied must be the one foreseen in the regulation in force at the time the last infraction was committed, as well as the amount of the UIT that was in force. |
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| 011-2022-SUNAFIL/TFL | OSH Supervision | – OSH supervision is a broad concept that is not reduced to the figure of a person (“supervisor”) who performs the control actions, because it also includes the procedures and methods provided by the employer to prevent risks and hazards, and this must be verified by the inspectors.
– What must be sanctioned is the absence of this scheme or design that implies the supervision in OSH and whose responsibility lies with the employer. – When performing the analysis, the administration must differentiate: (i) the lack of knowledge of the workers about the risk; and, (ii) the absence of supervision. |
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| 012-2022-SUNAFIL/TFL | Maternity leave | – The protection of the pregnant mother is not conditioned to prior communication to the employer. The “maternity leave” applies with the subsequent administration of the management status.
– Once the pregnancy is proven, it is concluded that the dismissal or non-renewal of the contract is unjustified. This also applies when there is harassment or any other act of intimidation aimed at the resignation of a pregnant worker. – The protection against termination extends until the end of the breastfeeding leave, that is, until the child reaches one year of age. |
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| 13-2022-SUNAFIL/TFL | Non Bis In Idem | – The principle is affected when there is: (i) subjective identity (both punitive claims are exercised against the same person); (ii) identity of fact (the conduct is the same in both punitive claims, under the same criteria of objectivity and period under review); and (iii) identity of basis (the legal good protected and the interests protected by the rules are the same).
– Since there is a “triple identity”, it is not possible to apply two or more sanctions or to develop multiple sanctioning procedures, except in cases of continuous acts or permanent violations. |
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OCCUPATIONAL HEALTH AND SAFETY
Occupational Health and Safety Measures for the porter worker.- The New Porter Worker Law created new labor and occupational health and safety obligations for this persons (Law Nº 31614).
Among the latter are: the qualification of this work as a risk activity, which entails the hiring of the Complementary Risk Work Insurance (“SCTR”); the evaluation of the physical, psychological and geographical conditions related to their work; the provision of optimal working conditions this as food based on an adequate diet, clothing, lumbar girdle, sun protection elements, maximum load limits, time and resting places, among others.
Let us remember that porters are those workers who, with their own body and physical effort, transport various loads (provisions, equipment or personal belongings and other goods necessary for expeditions for tourism, recreational, sports or other purposes), through places where motorized vehicles cannot enter.
SUNAFIL specifies the requirements for effective supervision as an occupational health and safety obligation.- As indicated in the table above, the TFL has defined the requirements for occupational health and safety supervision (Full Chamber Resolution Nº 011-2022-SUNAFIL/TFL).
According to the Court, it is not enough for the labor inspector to allege that the accident occurred due to a lack of supervision (because the worker entered an area where he was not supposed to work), but rather that this lack – in order to be qualified as a cause of the accident and, therefore, to apply Article 28.10 of D.S. Nº 019-2006-TR – requires a manifest absence of the entire structural complex involved in safety supervision.
