The use of the measure is appropriate as long as it is not fraudulent to the detriment of the workers, says a collegiate that exhorts the MTPE, as well as the representative organizations of workers and employers.
The Superior Court of Justice of Lima validated the outsourcing of the nuclear activities of the business as long as the use of this figure is not indiscriminate and abusive (fraudulent), harming the rights of workers.
It was through the judgment handed down in File No. 00756-2022-0-1801-SP-DC-03 (accumulated No. 00420-2022-0-1801-SP-DC-02; No. 00514-2022-0-1801 -SP-DC-02; No. 00417-2022-0-1801-SP-DC-02), issued by the Third Constitutional Chamber of Lima, which resolved in the first instance, the popular action lawsuits filed and accumulated against the Supreme Decree N° 001-2022-TR, which restricts the possibility of outsourcing the core of the business.
Guidelines
With the ruling, the collegiate party declares such claims to be partially founded and, therefore, annuls certain points of article 1 of that regulatory standard that defines the core of the business, as well as its only temporary complementary provision that establishes an adaptation period, details a report from Estudio Echecopar, associated with Baker & McKenzie International.
In this context, the superior chamber indicates that article 2 of that supreme decree regarding the prohibition of outsourcing of the core of the business must be interpreted and understood to be constitutional as long as it is understood that this prohibition applies to the accreditation of the indiscriminate use and abusive (fraudulent) of this form of contracting, with the consequent prejudice to the rights of workers.
The court urges the Ministry of Labor and Employment Promotion (MTPE), as well as the representative organizations of workers and employers, so that in the National Council of Labor and Employment Promotion they dialogue, discuss and reach an agreed solution on the issue of outsourcing activities that are part of the core of the business and any other related matter.
Basis
The higher chamber considers that the definition contained in the regulatory standard regarding the “core of the business” is imprecise and generates uncertainty, and that other measures other than the restriction of outsourcing nuclear activities could have been issued or implemented, in order to guarantee that it is not used the figure of outsourcing in an indiscriminate and/or fraudulent manner such as labor inspections and lawsuits before the Judiciary (PJ).
Under this premise, it interprets article 2 of the norm, giving it an interpretative meaning that, at the discretion of the court, prevents it from being illegal or unconstitutional and can subsist. The interpretation that must be made of this article, according to the room, is that it is possible to outsource the activities that are part of the core of the business, as long as their use is not “indiscriminate” and/or “abusive (fraudulent)”, in detriment of the workers.
This interpretation assumes that the outsourcing of the core of the business is not prohibited in itself, and that it would only be distorted if it is used indiscriminately or abusively. In other words, the burden of proof corresponds to whoever alleges that one of these situations occurs in each case, points out the aforementioned report of the law firm.
At the discretion of the legal firm, the collegiate was able to annul or eliminate the questioned rules, but only ordered the annulment of two articles, maintaining the validity of article 2 and following the provisions of the theory and jurisprudence of the Constitutional Court (TC) issued a “manipulative interpretive sentence”.
Consequently, the ruling does not eliminate the literal text of this article, it maintains it, but gives it a different meaning to prevent it from being illegal or unconstitutional and from being able to subsist, says the legal consultant’s report.
The sentence is not final, and as long as it has not been totally favorable to any of the parties, it could be appealed by any of them. If this does not happen, in accordance with the law, it will be reviewed ex officio by the Constitutional Chamber of the Supreme Court, that is, it would go in “consultation” to said supreme chamber, specifies the document from Estudio Echecopar, associated with Baker & McKenzie International .
Every time that the popular action, which allows annulment of a regulation when it presents a defect of legality or unconstitutionality, is processed before the PJ without reaching the TC.
In addition, the precautionary measure of general scope issued by Indecopi remains in force, while the controversy has not concluded.
The legal firm’s report states that the sentence does not take into account that the questioned norm violates the principle of legality, since a regulation, being of a lower hierarchy, cannot limit constitutional rights.
It warns that the ruling recognizes that constitutional rights and principles have been violated, but it does not completely eliminate the questioned norm (article 2). He issues an “interpretative sentence” to maintain it when he could eliminate it as unconstitutional, he specifies.
In addition, it indicates that the interpretation made is not clear and precise enough.
Finally, with the exhortation made, the merits of the controversy are transferred to the National Council of Labor and Employment Promotion to solve the issue of outsourcing. A “hortatory sentence” should be more precise so that its execution can be guaranteed, concludes the legal report of the aforementioned law firm.
Beginning
According to the ruling, the definition of business core contained in Article 1 of Supreme Decree No. 001-2022-TR violates the constitutional principle of classification or limitation because it does not clarify the concept of business core. This can lead to the adoption of broad interpretations or arbitrary and contradictory determinations about the core of the business under free will, generating uncertainty as to which is the identification of the core of the business that really corresponds, indicates a legal report by Miranda & Amado. This indeterminacy generates a lack of predictability in its application, violating the constitutional principle of legal certainty, he adds.
Source: The Peruvian
