Administrative Law
LABOR LAW PRINCIPLES
The working principles are the guidelines and criteria that inspire the sense of labor standards and shaping the regulation of labor relations
GUIDING PRINCIPLES
Principle of Equal Treatment
Prevents discrimination de jure (established by the regulations) or de facto (established by the employer). In this sense, if the latter gives a worker a right should be accorded to all others, except that this benefit is covered by a particular situation of the worker.
Principle No Waiver
This is a standard self-defense mechanism against acts by the parties. This principle is based on the need to ensure that the effectiveness of labor regulations remain detached as a result of acts performed by the recipient of its status as the weaker party in the relationship.
Labor Stability Principle
Granted permanent status of employment by the dissolution depend solely on the will of the worker, and only exceptionally of the employer
– Social Theory. A person will not develop their full potential but has the security and tranquility of staying on the job.
– Current Napoleon. He argues that there should be conducive to stability because he is not inclined to give up and mediocrity. If there is no stability work attempts to be the best to keep his job.
– Stream buffer. The employer can fire and choose to work with, but doing so must compensate the worker. This current maintains relative stability.
Input Stability
According to which from the beginning of the employment contract, the worker is protected in the termination of the employment relationship.
Output Stability
You can only terminate the employment relationship for reasons established by law. (Dismissal justified)
The stability of output can be:
– Absolute: When the worker is entitled to reinstatement in the case had not been fired for just cause.
– Relative: When a worker is entitled to compensation accrued salaries, etc.. The relative stability may be proper (when declaring the nullity of the dismissal without replacement worker) or improper (when appropriate compensation).
Principle of Primacy of Reality
This principle essentially aims to address what actually occurs frequently in the Peruvian labor: the simulation
Principle of Continuity of employment
Continuity is a characteristic that arises from the nature of the employment contract which is the chain of title because it does not end with the instant realization of certain acts but continues over time.
Principle of immediacy
Through this principle the employer and the employee should communicate, without a longer period of time, acts that involve violation of labor rights and obligations or accrued in acts of hostility or just cause for dismissal.
Principle of Reasonableness
We understand how reasonable the criteria from which determines the remuneration of an employee in cases that could not be fully established despite clear the existence of a relationship.
Pro indubio Principle Operator
It is expressed in Article 26 of the Constitution in force and by Article II of the Preliminary Title of the Labour Act provides that when in doubt about the meaning of a rule of nature work must be selected from an interpretation that is most favorable or beneficial to the worker
EMPLOYMENT CONTRACT
We understand the employment contract to the legal relationship between worker and employer, which are derived the rights and obligations of each of them.
The contract is the agreement given freely and voluntarily, between worker and employer, whereby the former agrees to make available to the second his own labor in exchange for payment.
The contract of employment determines the start of employment, generating a set of rights and obligations for the parties, regulating the conditions within which to develop this relationship.
FEATURES
-Consensual, because it requires no formality for its validity. Improves with the consent of the parties.
-Synallagmatic, because benefits are reciprocal parts (doing the work, pay compensation) and interdependent, that is, each feature acts as a necessary requirement for reciprocity.
-Bilateral, by bringing together two parties (employer and worker), which bind to certain benefits.
-Oner, as generates a consideration (payment) by the employer. There must be a balance between performance and compensation.
-Commutative, since the parties are aware of the services to be performed during the term of the employment relationship. These benefits are certain from of the contract.
-Chain of title (run continuously), because the benefits do the parties by their nature are permanent, regardless of whether a fixed or indeterminate.
-Principal, because there alone, without relying on another.
-Personal, because the service must be performed by the worker. Intuitive staff.
SUBJECT intervening
Employee | It is the natural person who undertakes, on the employer, and offers his own labor, subordinating. |
Employer | It is the natural or legal person who acquires the right to benefit from the provision of services and has the power to direct the activity of work, required to pay a fee. It is the debtor and creditor payment service. |
ESSENTIALS
PERSONAL SERVICE DELIVERY
The employee provides the employer’s own workforce, which is inseparable from his personality, which should provide the services personally and directly. The worker must run the service without assistance dependents or transferred in whole or in part to a third party.
However, this condition does not invalidate the worker to be assisted by family members who depend on it, so far as is usual given the nature of the work.
In labor relations, the activity is covered by the contract work is the specific activity of an individual worker. Therefore, the worker is always a natural person, however, is the lease of services or work, the landlord or contractor, respectively, can be natural or juridical person.
The service lease the landlord can rely on his own responsibility and management of auxiliary and substitute under certain conditions. Also in the works contract, the contractor may subcontract the performance of the work, in whole or in part with permission from the principal.
REMUNERATION
It is the consideration given by the employer to the worker in exchange for his services.
Compensation is more than a consideration, because the temporary worker inactivity, caused by certain causes, does not entail the suspension of pay.
Ejm. Rest vacation or sick leave. Therefore, states that compensation is the payment that corresponds to the worker for their activities available to the employer.
Legally defined compensation as the integrator of what the worker receives for his services in cash or in kind, whatever the form of name to give it, if that is freely available.
Payment must be made primarily in cash and partly in kind only. No part of remuneration:
-Special bonuses or other payments received by the worker occasionally, by way of donation from the employer or have been the subject of collective agreement or accepted in the conciliation or mediation, or established by resolution of the labor administration authority, or award. Included in this concept to the bonus for closing statement.
-Any form of participation in the profits of the company.
-Cost or value of working conditions.
Christmas-basket or the like.
-Value of transport provided that this conditional assistance to the workplace and reasonably cover the respective transfer. Included in this concept the fixed amount that the employer granted by individual agreement or collective agreement.
-Assignment or bonus for education, where the amount is reasonable and properly supported.
Allowances or bonuses, birthday, marriage, childbirth, death and those of similar nature. Likewise, the assignments are paid in connection with certain holidays if they are a result of collective bargaining.
-Well the company grants to its employees, its own production in a reasonable amount for direct consumption and family.
-All those amounts are awarded to the employee for the performance of their work or during their functions, such as mobility, travel expenses, entertainment expenses, clothing and in general everything that can reasonably fulfill such purpose and no benefit or advantage constitutes equity for the worker.
Snack-food that does not constitute principal.
-Food provided directly by the employer with the quality of working conditions as being essential to the provision of services, or arising out of legal mandate.
SUBORDINATION
The legal relationship from which it derives the employer’s right to direct the activity the worker offers and the correlative obligation to comply with the directions and orders given to it by the employer.
The employer to have the worker’s activity should be confined to the use of activity within the limits of the legal work (work performance of which has held the contract and the time and place to be provided.
Subordination implies the presence of three faculties of the employer, which are:
-Faculty guideline, regulation or organization through which the employer establishes general guidelines and specific work on how to execute the service
-School audit, whereby the employer verifies and ensures that orders are met given
-Disciplinary faculty, by which the employer can impose sanctions for noncompliance with the orders given.
Subordination is a characteristic of the work contract. Since the speech service contract work and no autonomy.
TYPICAL ELEMENTS
The employment contract is usually accompanied by a set of elements or characteristics that identify you. These characteristics are:
-Work is performed in a room or particular workplace, provided or directed by the employer to contract services.
-Whether a full-time job, that is, that is provided during the day des respective legal and regular workplace.
The contract of work has been held indefinitely
He works for one employer.
The presence of these typical elements is a particular relationship has a dual function:
-To presume that this is a labor-related link.
-Law graduated granted protection or benefits.
DURATION
The employment contract is one of the essential characteristics of being an indefinite term. That is, parties to celebrate not to limit its duration to a certain date or execution of a work or a specific service
Exceptionally, in some cases the law permits holding fixed-term contracts, called contracts subject to special conditions.
In our system, in accordance with Article 4 of the law of productivity and competitiveness, it is presumed, unless evidence to the contract, that all services paid and subordinates, there is an employment contract for an indefinite period.
FORMALITIES
The employment contract for an indefinite period is not subject to formalities, that its holding may be either written or verbal. However, the employer is under no obligation to register in his book of lists, the contract worker, within seventy-two hours of admission to provide the service (Article 3 of Decree No. 001-98-TR)
TYPES OF CONTRACT.
The contract does not require any formality for its validity, so it can be verbal or written.
The contracts are classified in response to its expiry date, contracts for an indefinite period and fixed-term contracts or fixed. The Peruvian labor system there is a presumption of indeterminacy in the contract expires unless the parties otherwise agree, using a form of contract specified time lawfully admitted.
INDEFINITE CONTRACT TIME
The indefinite contract is one that has no end date. This contract does not require formality valid pair can be verbal or written.
PARTICULAR CONTRACT TIME
The contract specified time or fixed term, has a validity period, ie the contract has a start date and end date can be fixed or dependent of an event scheduled at the beginning of the relationship and must be authorized by the Ministry of Labour and Employment Promotion.
Hiring a certain time limit only applies when the time is adjusted to the situations covered by law.
Contracts Manners
a. Nature temporary contracts
– Contract Start or increase in activity
– Contract market need
– Contract for business reconvension
b. And Supplemental
– Casual Contract
– Substitution Agreement
– Emergency Contracts
c. Contracts for work or services
– Contract for specific work or service
– Intermittent Contract
– Contract Season.
d. Other contracts subject to special conditions.
-Contract Part-Time.
Contract workers are considered part-time to those who serve in a time-dependent manner in less than four hours or living the workday of six or five days, as the case may be averaging less than four hours .
SUBJECT TO CONTRACT TYPE
Typically the contract is indefinite. However, our celebration legislation allows fixed-term contracts which he calls works contracts subject to special conditions, which may be held where required by market needs and increased production of the company and when required by temporary or accidental nature of the service to be performed or the work that must be executed unless the work contract or seasonal intermittent work which by its nature can be permanent.
Within these contracts are:
HOME FOR NEW CONTRACT ACTIVITY
It is the contract between employer and employee, caused by the beginning of a new business.
For these purposes means a new activity, both at the beginning of productive activity and the subsequent installation or opening of new stores or markets, as well as starting new activities or increasing existing ones within the same company.
This contract has a maximum duration of three years.
NEED MARKET CONTRACT
It is the contract between employer and employee in order to meet short-term production increases caused by substantial variations in demand in the market, even in the case of ordinary tasks that are part of normal business activity and can not be satisfied with permanent staff.
Temporary contracts by market needs must provide the objective grounds justifying the temporary hiring.
Ejm. if in summer the temperature is higher than usual and there were many cases of dehydration, which would increase the demand for desiccant salts, the or laboratories producing these salts may hire workers on fixed-term market need to build increased production and to cover the increased demand.
This contract may be renewed successively up to a maximum of 5 years.
EXPOSTULATION BUSINESS CONTRACT
It held the contract employer and worker under the replacement, expansion or modification of the activities in the company.
This contract has a maximum of 2 years.
CASUAL CONTRACT
It held the contract employer and worker needs in order to meet transient, different from the usual activity of the workplace.
This contract has a maximum duration of two years.
Substitution AGREEMENT
It is the contract between employer and employee in order that replaces a stable company worker whose employment relationship is suspended for any cause under the current legal and conventional devices.
The employer must reserve the position of the owner, who retains his right to reinstatement in the company, working with their return timely termination of contract substitution.
The duration of this contract is that is necessary under the circumstances.
EMERGENCY CONTRACT
It held the contract employer and employee to meet the needs arising in case of accident or force majeure.
In a fortuitous event or force majeure in these contracts, is set by its inevitability, unforeseeable and irresistible.
INTERMITTENT CONTRACT
It is the contract between employer and employee to meet the needs of the activities of the company by its nature permanent, but discontinuous.
These contracts may be made with the same worker, who shall have an option in the contract, the contract may be written in such primal law, that operate automatically, without requiring new or renewal contract conclusion.
The service time and the social rights of workers hired under this modality is determined based on the time actually worked.
This contract has no specific deadline, therefore, the duration is that the activity requires.
CONTRACT TERM
It is the contract between employer and employee in order to meet needs of the nature of business or establishment that is met only at certain times of year and are subject to repeated in equivalent periods in each cycle according to the nature of the productive activity.
In contracts for seasonal work must necessarily be in writing as follows:
-The length of the season.
-Nature of the activity of the undertaking, establishment or operation.
-Nature of the work of the worker.
SUSPENSION OF WORK CONTRACT
The employment contract ceases temporarily suspended when the worker’s obligation to provide services on grounds previously stipulated by law, agreement, internal work rules, or where the parties choose, may or may not stay the payment of remuneration, without dismiss the employment relationship.
CLASSIFICATION
Perfect Suspension | Temporarily ceases is when the worker’s obligation to provide the service and the employer’s obligation to pay remuneration, ie, suspending the obligations of both parties. |
Suspension Imperfecta | The employer must pay remuneration for work without effective consideration of the worker, ie, occurs when only cease obligations of the parties. |
GROUNDS FOR SUSPENSION
Temporary Disability
The employment contract suspended for the time of its duration. The temporary partial disability if it prevents only suspends the normal course of the work of the worker.
Proven sickness and accident
Both the disease and the accident cause temporary inability to work.
Motherhood for prenatal and postnatal rest
The pregnant worker is entitled to break from the forty-five days before the expected date of delivery to forty-five days.
Permission for breastfeeding.
The working mother at the end postnatal entitled to one hour a day of leave for breastfeeding until your child turns one year old this permit may be split into two equal and will be granted within their working hours (Article 1 of the Law No. 27 591).
Holiday break
The holiday break is thirty calendar days, your enjoyment may be fractionated, at least 7 days.
Licensed to hold office to meet with civic and military service
Workers who are elected members of the legislature shall be entitled to leave without pay for the time of his mandate, without loss of social rights, provided upon request (Article 1 of Law No. 16,559).
Permit and license fees for the performance of union
The time of the normal working day covering the permissions granted to the leaders to meet their trade union functions, means working for all legal and contractual to the limit of thirty days for each leader and calendar year (unless there is collective agreement more favorable to the worker, in which case this limit does not apply).
Disciplinary
Under the faculty guidance, the employer may punish misconduct by the employee in performing their duties. The disciplinary suspension is not regulated by legislation and their application guidelines subject to the authority of the employer, the rules of procedure or the collective agreement.
Exercising the right to strike
The strike according to law, suspend all the effects of individual employment contracts, including the obligation to pay compensation, without affecting the livelihood of the employment relationship.
Detention Worker
Includes both remand court. In case of a custodial sentence operates the termination of employment.
Administrative or judicial disqualification
The ban imposed by judicial or administrative authority for the exercise of the activity performed by the worker at the center of work, or period of less than three months, suspend the employment relationship for a period of duration. If the disqualification is more than three months of the employment relationship ceases.
Permission or license granted by the employer
Our legislation does not regulate the issue of permits or licenses, except in cases mentioned above (union leaders, political office and military service), so this topic is subject to the policies of the company (internal work regulations, directives or agreements groups) or the employer’s discretion.
If there are no internal regulations in the workplace the employer is not obligated to issue permits or licenses.
Fortuitous event and force majeure
There is a fortuitous event or force majeure is invoked when the character made inevitable, unforeseeable, irresistible and impossible the continuation of work by a certain time.
Other reasons established by regulation states:
Adoption leave
The petitioner for adoption worker is entitled to leave with there for thirty calendar days, counted from the day after the Administrative Order issued to Family Placement and signed the relevant Act of Acceptance of the child if the child be taken no more than twelve years of age.
License to donate organs and tissues
Any worker who wishes to donate blood is entitled to his workplace given permission by the time it takes the donation process (Article 10 of Law 27 282). This includes special grants such as apheresis (technique by which separate the components of blood, being selected needed to be applied in medicine and returned to the bloodstream the other components) and autologous (blood units that used the donor ).
The employer granted permission for their workers if the health facility which houses the Blood Bank had no office hours outside of working hours provided that this does not affect the production of the workplace.
Athletes participating in competitions
Workers in the public and private sectors and members of the Armed Forces and Police who are selected to represent Peru in international sporting events, are entitled to paid leave to do, if any, and facilities in rallies and competitions. This right extends to sports leaders and experts (Article 57 of Legislative Decree No. 328).
Temporary closure of establishment for tax violation
The penalty of temporary closure of establishment or office of independent professional tax infringement does not relieve the offender of the payment of salaries corresponding to their workers during the days of the enactment or application of computing these days and the actual performance effect social benefits (Sunday, vacation, profit sharing, compensation for length of service) unless the worker or workers who would have been responsible, by act or omission of the offense for which the sanction of temporary closure. The employer (taxpayer) shall report such fact sentenced to the labor administration authority.
Veda extraction of aquatic species
The ban on mining and processing of aquatic species established by the Fisheries Sector for the Ministry of Production, pursuant to the provisions empowering for the duration of the fishing companies, the temporary suspension of contracts perfect work (Article 1, Supreme Decree No. 006-96-TR).