IUS ET VERITAS

Protecting the right to occupational health in the face of the development of digital working time: the fight against the denaturalization of the limits of working and rest time

José Eduardo López Ahumada — 2024-12-27

This research paper analyses how the digitalization of production processes affects the variables of working time and occupational health. It focuses on the flexibility of the working day and its impact on new digital work environments. Flexibility is used to create models of irregular distribution of working time. The study seeks to fairly apply working time regulations, avoiding denaturalizing the legal limits of the working day and ensuring that there are no negative effects on occupational health and safety. It also addresses practical problems arising from the confusion between working time and the private life of workers.

The Ius variandi in Peru: between the breadth of the legal formula and the essential conditions for its exercise

Alfredo Villavicencio Ríos — 2024-12-27

This study discusses the power of employers to modify the working conditions established in an employment contract in Peru. It addresses the general framework, essential to give context to this power. Then it develops its scope broadly enshrined in the law, differentiating it from the employer’s power to establish accessory or secondary alterations. Next, it addresses the limits linked to the requirements of causality and proportionality set by law. Finally, it analyzes the limits regarding the case working time modifications, given its specific regulation.

Legal Regime of Telework in Peru

Elmer Arce Ortiz — 2024-12-27

In September 2022, Law 31572 repealed Law 30036, thereby modifying the legal regime of teleworking in Peru. In this context, this work aims to study and describe, in normative terms, the new legal regime that Law 31572 imposes on teleworking. The new Law refers to a special modality of provision of work, requiring a precise study centered on the impact of teleworking on essential elements such as the employment contract, its benefits, termination, among others. This means that Law 31572 regulates specific situations related to all teleworkers, regardless of the general labor legislation, namely Labor Productivity and Competitiveness Law. This study will address these specific rules.

Artificial intelligence and labour relations

Jorge Toyama Miyagusuku — 2024-12-27

Artificial intelligence is impacting labour relations through job reduction, the creation of new positions, and the use of algorithms in labour decisions, among other ways. Its impact is evident in the application of artificial intelligence in personnel selection, the employment relationship itself, and its termination. This article will analyse the labour conflicts arising from the implementation of artificial intelligence, highlighting both the points of convergence and disagreement between artificial intelligence and labour law.
Likewise, in the absence of specific legal regulations, possible solutions are proposed, such as employing the proportionality test as a tool for resolving labour disputes related to artificial intelligence. It is crucial to balance business efficiency with the protection of workers’ fundamental rights. Finally, the article emphasizes that labour conflicts should be prevented through social dialogue and policies that ensure transparency in the use and effects of artificial intelligence.

The personal effectiveness of the collective agreement: Comings and goings on the unilateral extension of the collective agreement

Guillermo Boza Pró — 2024-12-27

The unilateral extension of the collective agreement has been widely discussed by Peruvian doctrine and jurisprudence for more than a decade. Aside from this, it maintains its validity to the extent that there is still a contrast in positions between two decision-making bodies of the Peruvian labor legal system. This article addresses the topic with the purpose of establishing a position on the debate, developing its analysis in three sections. Firstly, basic issues relating to the collective agreement as a bargaining product, its legal effectiveness and its personal effectiveness related to the criterion of greater representativeness are reviewed. Secondly, the jurisprudential evolution that the topic has had in the decisions of the Supreme Court, such as those of the Labour Inspection Court of the National Superintendence of Labour Inspection, is detailed; in such a way that the authors mark their position on the arguments outlined in each case. Next, a rarely touched upon aspect of the theme is developed; that is, the possibility for non-unionized workers to retain the benefits unilaterally extended by the employer. The article ends with some brief conclusions on what has been reflected.

Mental health care: a challenge to guarantee safe and healthy work environments

Sergio Quiñones Infante — 2024-12-27

This paper is aimed to analyze the strong link that exists between the implementation of appropriate measures to care for the mental health of workers in the workplace and the effective compliance by employers with guaranteeing a safe and healthy environment in all work centers. With this purpose, we begin by developing the applicable theoretical framework within which the concept of “mental health at work” is framed; subsequently, we analyze data about the current state of this public problem, both at a global and national level, placing particular emphasis on those investigations that show the negative impact that inadequate mental health care generates on the work productivity of workers. Finally, we will evaluate the current and future challenges that mental health care at work presents from the perspective of public policies and from the perspective of business organizations.

Do employers have a duty to continue paying wages in absence of work in return? Reasons to consider

Ernesto Alonso Aguinaga Meza — 2024-12-27

This paper, drawing from what occurred before and after the pandemic, is a substantiation endeavour aimed at determining the grounds that authorize the imposition, by law, of the corporate duty to continue paying wages, despite not receiving -or even expecting- work in return. To this end, first, it shows that the law in force already provides a powerful legal reason to justify legislative interventions in this sense: the constitutionalized social dimension of wages. Subsequently, in order to support the constitutional principle in question, it argues that there are sufficient moral reasons to implement distributive mechanisms of business income that even cover cases in which it is factually impossible to offer work in exchange. Finally, appealing to the notion of “special positive duty”, it asserts that the aforementioned constitutional provision is the materialization in the labour sphere of the ethical duty of every person to provide assistance to others who are in a hazardous situation or need, provided that doing so involves a trivial effort or sacrifice.

The configuration of teleworking by courts of justice and collective bargaining: an illustrated vision

Diego Megino Fernández — 2024-12-27

In the current and changing world of work, the intervention of courts of justice and collective bargaining is increasingly necessary. This is confirmed, for example, by the complex configuration of teleworking, a very important figure during the health pandemic caused by COVID-19 and called to have higher levels of prominence. This study, based on the most recent judicial decisions and collective agreements, aims to provide an exemplary and reflective overview of some of its main constituent elements. As you will have the opportunity to appreciate as you progress in the reading, although we should not underestimate the progress and efforts made to date from the social concertation, even today the courts must intervene too often and intensity to address the many edges and controversies raised. In fact, with few exceptions, many of the aspects under analysis have not yet crystallized in a relevant way in the conventional practice, thus confirming that teleworking requires a different and more ambitious treatment by the negotiating bodies.

Labour inspection and trade unions: criticism of their interaction and foundations for a collaborative relationship

Luis Mendoza Legoas — 2024-12-27

The relationship between the trade union movement and labour inspection is complex and its observation in the Peruvian context in recent years allows us to deduce certain practical rules about this reality. We are not facing a simple sum of protective efforts over the rights of workers covered by both entities: there are cases in which the real capacity of both actors can be mutually enhanced and sometimes counteracted. Thus, after a legal investigation –which makes use of inductive and jurisprudential methods– and with a wide-open approach to the socioeconomic effects that the intervention of the union and labor inspection have on labor relations, a specific typology is proposed to understand and value these intersections.

From victims to perpetrators: the crime of defamation and public allegations of gender-based violence

Josefina Miró Quesada Gayoso — 2024-12-27

Public allegations of sexual or gender-based violence made through social media serve as a “release valve” for victim-survivors who distrust the State’s ability to meet their justice needs. This alternative complaint mechanism highlights the systemic nature of these forms of violence that have been tolerated, denied or silenced by our society. For victim-survivors, public allegations can provide spaces for validation, support and understanding. However, in certain cases, the response to these allegations may exacerbate the primary victimization caused by the violence experienced. This occurs when accused aggressors file defamation lawsuits against the victims, effectively turning them into offenders in the eyes of the justice system. This is the diagnosis upon which this article is based. From this point of view, the author provides guidelines in identifying judicial remedies applicable to these scenarios, where the fundamental rights to freedom of expression and honor come into conflict. In the absence of a national articulated response, this article systematizes the most recent constitutional, international and comparative law standards relevant to resolving such cases.

The Principle of Horizontal Subsidiarity: Framing Notes for its Role in the Peruvian Economic System

Lucio Andrés Sánchez Povis — 2024-12-27

This paper explores the principle of horizontal subsidiarity in the Peruvian legal system, highlighting its importance as a fundamental pillar to balance state intervention and individual freedom in the economy. Starting with the explicit enshrinement of this principle in Article 60 of the 1993 Constitution, the study analyses its application and the challenges it faces in practice, particularly in the economic and social spheres. The paper reviews the historical and doctrinal evolution of the concept of subsidiarity, from its roots in classical political philosophy to its development in the Social Doctrine of the Catholic Church, and how these influences are reflected in Peruvian regulations. The paper also examines the interpretations and applications of the principle of subsidiarity in the jurisprudence of the Constitutional Court and INDECOPI’s decision-making practice, including the implementation of the “subsidiarity test” as a tool to evaluate the legitimacy of state business activities. It is argued that while this principle has been crucial in limiting state intervention, its interpretation should be broader, encompassing not only economic aspects but also its impact on the promotion of fundamental rights and social cohesion. The paper concludes with a critical evaluation of current policies and proposes recommendations to strengthen the application of the principle of subsidiarity in Peru, promoting a framework of state intervention that respects individual autonomy and fosters balanced and sustainable development in all areas of society.

Is the system for eliminating bureaucratic barriers constitutional?: A debate based on the case of labor outsourcing

Sonia Quiñonez López — 2024-12-27

The present article discusses the constitutionality of the system for eliminating bureaucratic barriers implemented by the Comisión de Eliminación de Barreras Burocráticas (CEB) and the Sala de Eliminación de Barreras Burocráticas (SEL) of INDECOPI. It demonstrates that these entities do not engage in strict constitutional review but are limited to declaring the illegality or unreasonableness of bureaucratic barriers without repealing the underlying norms. Thus, they do not assume jurisdictional functions nor conduct a proper constitutional review of general administrative provisions and administrative acts. Instead, they ensure the legality and reasonableness of administrative regulation, coexisting with other forms of constitutional control such as the popular action and diffuse control.

The tax statute of limitations

Jaime Lara Márquez — 2024-12-27

An analysis is made of the statute of limitations in tax matters. An interpretative exercise is carried out on articles 43 and 44 of the Tax Code, in order to determine their true normative content. The central issues addressed are: (i) what is the beginning of the statute of limitations, also known as dies a quo, and (ii) what is the extension of the statute of limitations period. Regarding the first issue, it is argued that this does not occur on 1 January of the following year, as stated in case law and doctrine. It occurs much earlier, at the time prior to that referred to in Article 44 of the Tax Code at each of its initiations, such as the date on which the deadline for filing the annual tax return expires or on which the obligation becomes due. Regarding the second issue, it is argued that the total limitation period is not 4, 6 or 10 years, but that the limitation period is longer than that number of years, since the limitation period starts to run from the previous moment referred to in each of the subparagraphs of article 44 of the Tax Code.

The legal regime applicable to illicit profitable acts: between Tort Law and Unjust Enrichment

Thalles Ricardo Alciati Valim — 2024-12-27

This paper aims to identify the appropriate conceptual framework for illicit profitable acts, understood as those from which the wrongdoer derives advantages that exceed the mere dimension of the obligation to compensate. To do so, the fields of Tort Law and Unjust Enrichment are studied, both of which are considered candidates for legal application. It becomes evident that Tort Law’s structure is inadequate for the pursued task, as the purpose of compensation is different: it serves to repair damage. On the other hand, recognizing partial forms of unjust enrichment (especially enrichment through intervention) may serve to require the wrongdoer to restitute the economic benefits obtained due to reprehensible conduct.