Benefit must be granted based on the value of the remuneration set for the time in which the work is carried out in overtime, in accordance with the provisions of article 23 of the Regulation of the TUO of the Law of Work Day, Hours and Work in Overtime.
The amount to be paid for overtime must be calculated based on the value of the remuneration in force at the time the overtime work is performed.
This in application of article 23 of the Regulation of the Single Ordered Text (TUO) of the Law on Work Days, Hours and Overtime Work, approved by Supreme Decree No. 008-2002-TR.
The amount to be paid for night overtime must be calculated on the basis of the value of the remuneration established for night work.
This constitutes the main administrative jurisprudential guideline that emerges from Resolution No. 618-2022-Sunafil/TFL-First Chamber, issued by the First Chamber of the Labor Inspection Court (TFL) of the National Superintendence of Labor Inspection (Sunafil).
With this resolution, said administrative collegiate declares unfounded an appeal for review filed by a textile company within an administrative sanctioning procedure and specifies the way to calculate the amount to be paid for overtime, in accordance with the provisions of current labor regulations. .
In the case that is the subject of the aforementioned resolution, a textile company inspected by the labor inspection authority was fined a total amount of 111,116.25 soles for having incurred four serious infractions in terms of labor relations, five very serious infractions in the same matter and a very serious infraction to the inspection work. One of the very serious infractions in terms of labor relations was not paying daytime and nighttime overtime at 25% and 35% of the period between December 2015 and December 2017 in favor of a worker, typified in numeral 25.6 of the article 25 of the Regulations of the General Labor Inspection Law (RLGIT), approved by Supreme Decree No. 019-2006-TR.
The company appealed the subintendence resolution by which it was fined and the corresponding Sunafil administration declared the appeal unfounded.
Given this, the textile company filed an appeal for review alleging, among other reasons, that it did comply with paying the worker involved for the overtime hours corresponding to the aforementioned period.
Upon learning of the case, the First Chamber of the Court of Sunafil warns about the non-compliance with the payment of overtime that the acting labor inspector recorded in the seventh verified fact of the respective act of infraction that of the corresponding Attendance Control Registry From May 2014 to December 2017, the worker involved had mixed ordinary shifts, since both daytime hours were from 7:00 a.m. to 7:00 p.m., and night hours from 7:00 p.m. to 7:00 a.m.
At the same time, the administrative collegiate verifies from the remuneration payment slips corresponding to November 2013 to April 2016 that the worker received a basic remuneration of 750 soles; and from May 2016 to January 2018, 850 soles.
In this sense, having worked overtime after her usual schedule, at the rate of three overtime hours and 15 minutes after her day and night shift, the value of the overtime worked must be calculated based on the remuneration established for the moment in which each extra hour is done, in application of the provisions of the second paragraph of article 23 of Supreme Decree No. 008-2002-TR, specifies the TFL.
Therefore, considering that the ordinary working day combines daytime and nighttime hours, overtime must be paid based on the time they are performed, he emphasizes.
Thus, the administrative collegiate verifies that after reviewing the wage payment slips displayed, the labor inspector determined that the contestant did not prove the payment of daytime and nighttime overtime at 25% and 35% in favor of the worker, corresponding to the period between May 2014 and December 2017. Since at the time of making the respective calculation, the employer did not consider the real and total number of daytime overtime hours performed in said period.
In this context, the First Chamber of the Sunafil Court concludes that the night overtime hours should have been calculated based on the remuneration established for the night shift, in addition to the payment of the respective legal interest.
Therefore, the TFL declared, among other reasons, the aforementioned appeal for review filed unfounded and confirmed the decision of the quartermaster in the extreme referring to the very serious infraction in the matter of labor relations, typified in numeral 25.6 of article 25 of the RLGIT , among other extremes.
In accordance with the regulations of the TFL, the purpose of the appeal for review is the adequate application of the socio-labor legal system to the specific case and the uniformity of the pronouncements of the Labor Inspection System. In this context, it is based on the non-application, as well as on the erroneous application or interpretation of labor law regulations, or on the unmotivated departure from the precedents of mandatory observance of the Sunafil Court, warns the First Chamber of the TFL. Therefore, it states that the appeal for review is filed against the second instance resolutions issued by authorities of said system that are not of national competence, which sanction the very serious infractions provided for in the RLGIT, approved by Supreme Decree No. 019-2006 -TR and its amending rules.
Source: The Peruvian