If at the time of the inspection actions it is evident that such a procedure is pending, the inspector must not presume the illegality of the employer’s conduct, by not paying salaries.
The inspector must not presume the illegality of the employer’s conduct, by not paying wages.
During the processing of a request for perfect suspension of work, the employer will be exempt from paying the remuneration to the workers involved.
This in application of the administrative precedents of mandatory observance referred to the legality block, in the actions of the administrative authority, on the request for perfect suspension of work, established by the Labor Inspection Court (TFL) of the National Superintendence of Labor Inspection. (Sunafil) through Full Chamber Resolution No. 007-2022-SUNAFIL/TFL, warns Benites, Vargas & Ugaz Abogados in its recent Labor Bulletin.
With this resolution, said administrative collegiate declares well-founded an appeal for review filed by an inspected company that was sanctioned within an administrative sanctioning procedure for allegedly having incurred in two very serious infractions.
One for committing acts of hostility against a worker by not paying him his remuneration for a certain period, typified in numeral 25.14 of article 25 of the Regulations of the General Labor Inspection Law (RLGIT). And, another for not complying with a requirement inspection measure, typified in numeral 46.7 of article 46 of the RLGIT.
In accordance with the full room resolution, the employer, when requesting authorization for the execution of the perfect suspension of work, invoked in the context of the health emergency, must communicate the measure (and their support) to the affected workers, applying the duty to promote collective bargaining at this stage, and taking into account that this decision cannot mean an affectation of the fundamental rights of workers.
Therefore, the TFL establishes as a precedent that the administrative competence to authorize the application of the perfect suspension of work in the scenario of the covid-19 pandemic, exceptionally activated, allows the employer not to be obliged to pay wages, even before the approval of your application.
But, if the business request is disapproved, the salary of the affected workers will have to be paid, for the time that the suspension measure has lasted, he says.
In addition, the TFL determines that this administrative competence to qualify the request for perfect suspension of work is exclusive to the administrative labor authority, in accordance with the applicable legislation.
Therefore, it is concluded as a mandatory criterion that the labor inspection contributes to the formation of the decision, in charge of the labor administrative authority, by determining relevant factual elements about the phenomenon under control.
This, without prejudice to the supervisory tasks that the labor inspection could execute simultaneously or later, on aspects other than the origin of the perfect suspension of work that is appropriate or inappropriate, he details.
At the same time, the collegiate determines as a precedent that the action of the labor inspection authority is not intended to qualify the request for perfect suspension of work, but rather assists the competent administrative labor authority to resolve the admissibility or inadmissibility of said request. .
This, without prejudice to the control deployed with the labor supervision over possible facts derived from the request for the perfect suspension, which constitute a matter other than the object of the pronouncement in the approval procedure or that of challenging the perfect suspension of work, until the issuance of the firm administrative act.
Regarding the qualification of facts that may be connected to a file requesting the perfect suspension of work, on which there is not yet a final administrative act, the TFL details that the observance of the principles of legality, material truth and presumption of legality, among others, that must be followed by the inspecting and sanctioning authority, before proposing or determining the possible administrative responsibility of the subject inspected.
Therefore, if at the time of the inspection actions it is evident that a request for perfect suspension of work is pending, which must be addressed by the competent authority, the inspector must not presume the illegality of the employer’s conduct, by not making the payment. of remunerations, since the procedure of the perfect suspension has not yet concluded, sets the TFL as a precedent. This, in application of the block of legality applicable to a perfect suspension and the distribution of competences established in the administrative labor law.
In the opinion of the labor expert Jorge Luis Acevedo Mercado, it is important that with said plenary resolution the powers of Sunafil and the Administrative Labor Authority regarding the perfect suspension of work have been elucidated. Since the TFL defines that the approval or denial of the perfect suspension of work is the exclusive competence of the Labor Administrative Authority, and that the function of Sunafil is assistance but not decision.
“There cannot be two authorities simultaneously knowing the same issue, because there cannot be a conflict of criteria,” says Acevedo. Given this, the expert recommends that companies keep in mind the criterion that while the perfect suspension procedure lasts, they are already authorized not to pay remuneration. “And if Sunafil enters to know, to try to inspect or supervise something regarding the procedure, they may tell him to refrain until the procedure for the perfect suspension of work is finished,” indicates the partner of Benites, Vargas & Ugaz Abogados.
Source: The Peruvian