REM CURRENT NEWS
New Control Protocol for Sexual Harassment.– The Protocol contains the guidelines that SUNAFIL must follow in case of complaints of sexual harassment. The main novelties are the following:
(i) Any complaint received by the Labour Inspection Authority regarding alleged acts of sexual harassment will be submitted to the Government Attorney General’s Office.
(ii) The inspections must be carried out within a maximum period of 30 business days, which may be extended for an additional 15 business day period.
(iii) If the complaint of sexual harassment involves outsourcing or intermediation companies, 2 inspection orders will be generated (one for the outsourcing or intermediation companies and the other one for the user or main company).
(iv) Compliance by employers with the new obligations in terms of sexual harassment within the strict deadlines established in the applicable legislation will be verified.
This includes, but is not limited to, the following obligations: formation of the Intervention Committee in cases of sexual harassment; initiation of the investigation and sanction of sexual harassment procedure; granting of protection measures and the provision of medical and psychological care; issuance of a decision that terminates the investigation and sanction of sexual harassment procedure; communications to the Administrative Labour Authority; and adoption of prevention measures and dissemination of applicable information.
The Newsletter on the characteristics and differences of the Private Pension System (SPP) and the National Pension System (SNP) was updated. – Employers must deliver a copy of said updated document to those unaffiliated workers who join a workplace for the first time, so they can freely decide which system to join.
REM CASE LAW
VIII Supreme Jurisdictional Plenary Session on Labour and Social Security Matters (2019) .- In October the following agreements adopted by the Supreme Court Justices of the Republic applicable to the private sector were published:
(i) Trade union privileges: The protection of the trade union privileges granted to the union leaders also applies to the workers who have been removed from office, if they are dismissed for their past union activity and, in addition, it also applies to any worker who has been dismissed or harassed for their participation in union activities.
(ii) Effects of Collective Bargaining Agreement executed with minority union trades:
– The effects of the collective Bargaining agreements signed by a minority union cannot be extended for workers who have not joined the trade union or are not unionized, unless the agreement itself expressly states otherwise, or the employer does so unilaterally, but only in terms of the “labour benefits that are more favourable to the worker”.
– In case the worker has been unable to join a union because they did not formally maintain a labour relationship with the employer, once the existence of the employment relationship between a worker and their employer is admitted in a judicial process, the worker will be granted the benefits agreed in the collective bargaining agreements or economic arbitration awards, following the parameters indicated below:
This plenary session agreement is also applicable to economic arbitration awards.
The administrative resolutions issued in inspection procedures matters that were in charge of auxiliary inspectors are valid.- The Supreme Court has validated the possibility that auxiliary inspectors act on behalf of the work team to which they have been designated through an inspection order, without it being required that the labour inspector be present at every stage of the inspection (Labour Cassation. No. 16935-2017 Arequipa).
REM INSPECTIONS
SUNAFIL adopted new regulatory criteria in wage discrimination matters.- Through Superintendency Resolution No. 305-2019-SUNAFIL, three new criteria have been adopted, and will be applied to the inspections on wage discrimination:
(i) Development of the inspection: The investigation and identification of wage discrimination cases between men and women is carried out even if the employer does not have the salary policy and / or the table of categories and functions. In that case, other means of proof will be used to determine the existence of the infringement.
(ii) Duty of discretion: The complainant’s duty of discretion may be lifted when necessary in order to verify the wage discrimination on the basis of gender.
(iii) Scope of inspection: Labour inspectors are competent to supervise the salary policy and the table of categories and functions of all employers in the private sector of the labour regime of private activity.
SAFETY AND HEALTH IN THE WORKPLACE
Draft Regulation of Law No.30947, Mental Health Act.- This draft regulation proposes to adopt a series of measures in the workplace, such as:
(i) The development of guidelines that recognize the pre-eminence of the person’s well-being.
(ii) The promotion of working conditions and organizational environments favourable for mental health care.
(iii) The development of programs that include measures to control work-related stress, harassment, boredom, etc.
In addition, the project reiterates the prohibition of requesting medical health certificates or psychological reports during the application, admission or other process in the workplace, and recognizes the voluntary nature of the medical, psychological or interdisciplinary evaluation in mental health, unless it is established as a mandatory occupational medical exam.
Establishment of Occupational Health and Safety Committees in mining companies.- The election process for the establishment of these Committees begins in November. For further information, click on the following link: https://www.estudiorodrigo.com/alerta-laboral-octubre-2019/
