Even when the parties have not agreed that the remuneration increase for extension of the working day should be part of the basic remuneration, this does not imply that its remunerative nature is unknown.
Any payment that proves regular and permanent payment in favor of the worker must be considered part of the basic remuneration.
This constitutes the main jurisprudential guideline that emerges from the ruling issued in the Labor Cassation No. 27455-2019 Callao, issued by the Second Chamber of Transitory Constitutional and Social Law of the Supreme Court of Justice, warns Benites, Vargas & Ugaz Abogados in your recent Labor Bulletin.
With this ruling, the highest judicial instance declares a labor cassation appeal filed in an ordinary process of reimbursement of economic benefits well founded and specifies the labor impact of regular and permanent payments in favor of the worker.
In the case that is the subject of the labor cassation, a worker demands that the employer company comply with an act of implementation of three work shifts in an operational area with which the working day was extended from 42 to 48 hours per week.
In this context, it requests that the company be ordered to incorporate into its basic remuneration the extra payment of 489.90 soles per month that it receives for the work it performs during that extension of the working day from a certain date, as well as to pay the salary remuneration collateral product of that day labor extension.
As an accessory claim, the worker requests the payment of legal interest, costs and costs of the process.
For its part, the employing company alleges that in said act it was agreed that any amount of extra money received by the worker for the work he performs during the extension of the working day is not part of the basic remuneration.
The corresponding labor court declared the claim partially founded and ordered the inclusion of the concept “extension of the working day by act of implementation of three shifts” in the basic remuneration of the worker with an impact on the collateral income of the plaintiff worker.
That decision was revoked by the competent labor chamber, which declared the lawsuit unfounded, before which the plaintiff worker filed an appeal alleging that the superior collegiate, when issuing a sentence, incurred in a normative violation due to an erroneous interpretation of articles 3, 11 and 12 of the Single Ordered Text (TUO) of the Law on Working Hours, Hours and Overtime Work, approved by Supreme Decree No. 007-2002-TR.
In accordance with article 3 of that law in work centers in which there are working days of less than eight hours a day or 48 hours a week, the employer may unilaterally extend them up to said limits, increasing the remuneration based on the additional time.
For this purpose, it adds, the ordinary remuneration criterion contained in article 12 of that law will be observed.
According to such article 12, for purposes of calculating the surcharge or surcharge, the hourly value is equal to the remuneration of a day divided by the number of hours of the respective worker’s day.
While article 11 of the TUO of the aforementioned law indicates that ordinary remuneration is understood to be that which, in accordance with the provisions of Article 39 of the TUO of Legislative Decree No. 728, the worker receives, weekly, fortnightly or monthly, as appropriate. , in money or in kind, including the value of food.
However, it specifies that variable or imprecise supplementary remunerations are not included, as well as others with a frequency other than weekly, fortnightly or monthly, as appropriate.
Upon hearing the case, the Supreme Chamber notes the absence of controversy regarding that extra amount received by the worker due to the extension of the working day (489.90 soles), as can be seen from the payment slip and other evidence.
In addition to the pay slip and other evidence, the Supreme Court found that the worker, since March 2007, has received such a salary increase due to the extension of the working day under the title (“Legislative Decree 854”). With what is proven that said payment emerges from the consideration of the services provided by the worker, which is paid on a regular, ordinary and permanent basis, and that it has the quality of a freely available concept, the Supreme Court concludes.
Consequently, the Supreme Court determines that such extra remunerative income of the worker must constitute part of his basic remuneration and that it must be considered for the calculation of social benefits.
At the same time, it establishes that even when the parties to the process have not agreed that the remuneration increase due to the extension of the working day should be part of the basic remuneration, this does not imply that its remunerative nature is unknown.
For all these reasons, it concludes that the cause denounced becomes well-founded and declares the labor appeal well-founded.
With this sentence it is clear that any payment that rewards the effective performance of the worker’s main tasks is remuneration, commented the labor activist Jorge Luis Acevedo Mercado. Therefore, he specified that any payment to the worker for extension of the working day is also remuneration.
This, taking into account that when the working day is extended, the basic remuneration that serves as the basis for calculating social benefits must be increased, said the specialist, who works as a partner at Benites, Vargas & Ugaz Abogados.
In this context, the expert considers that said increase should be made proportionally to the hours of the extension of the working day. Consequently, he recommends that employers who increase the working day proportionally increase the basic remuneration in this way, without granting additional bonuses to avoid controversies.
Source: The Peruvian