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Mundie
e Advogados
Labor
Newsletter
May / 2019
Chile
Law No.
21122 amends the Chilean Labor Code in the Contract for project or tasks:
For the first time in
Chile, the Labor Code defines what a contract per project or task is, its
validity, under which the hypothesis is transformed into an indefinite term
contract, and which indemnities must be paid when completed. Such a
contract is defined as the agreement by which the worker undertakes to
perform a specific material or intellectual with whom he agrees which will
be the starting and ending period, and the validity is limited to the
duration of the contract. The various tasks or stages of a project or tasks
cannot be the subject of two or more such successive contracts, otherwise
it will be understood as an indefinite contract. An additional compensation
amounting to two and a half days′ pay for each month worked and a fraction
of more than fifteen days shall be paid in a project or task contract. In
any event, the application for compensation will be gradual within a
37-month period as of 1 January 2019. According to Andrés Garrido, there
are sectors of the economy, such as agriculture and construction, which,
given the seasonality in which services are provided, usually use
contracting by project or task and will benefit from this new contract. The
new regulations, however, establish new rights for this type of contract,
vacation and compensation payment, which will lead to increased costs.
Andrés Garrido O.
Partner Labor Matters
Allende Bascuñán & Cía. SpA
www.abcia.cl
Peru:
Women and
men equal wages pay:
As of July 2019, the
Peruvian Labor Administrative Authority (SUNAFIL) will initiate labor
inspections and may impose penalties for offenses classified as serious if
employers have failed to implement gender equality pay policies pursuant to
the provisions of Law No. 30709, which prevents wage discrimination on the
Peruvian labor market. Equal pay policies must comply with the following
aspects: (i) Employers shall establish salaries by category or tier,
without discrimination or bias; (ii) Employers who already have
organizational charts with defined salary levels or categories may maintain
such salary structures as long as they comply with the aforementioned law.
Employers who do not have such salary structures need to develop them;
(iii) Employers must ensure equality between men and women in their
training and performance plans; (iv) Employers must ensure dignified
treatment, a work environment based on respect and non-discrimination,
compatibility of personal, family and work life, particularly with regard
to prevention, and different wages between men and women who meet the same
job access requirements and perform the same duties are considered
discriminatory. Salary policies and career plans must include (a) the
identification of job positions; (b) the assessment of each job position;
(c) comparisons between each job position and wage gaps between them; and
(d) measures to eliminate wage gaps, among others.
Diego Castillo Fuentes
Hernández&Cía. Abogados
www.ehernandez.com.pe
Brazil:
1.
Changes in Trade Union registration.
On May1st, Minister of Justice, issued an Ordinance which lays down a new
legal online framework for registering existing and new trade union
entities. It aims to reduce the time elapsed for a union registration.
Unions shall be identified and those not complying with new rules of
registration are obliged to take the appropriate measures, such as proving
that they have made a number of calls for general meetings to set up or
ratify the existence of the union, provide evidence of the agenda of the
general meeting, the participants, the decisions taken, the list of
appointed union leaders and their full identification, among others. The
Ordinance also provides rules for conflict resolution between trade union
entities disputing the same representation and opposition if registration
is suspended or refused.
What is going to change? Nothing will change for employers and
workers. The new Ordinance is a transitional process in which existing and
new trade unions that do not meet the new registration standards will be
identified and required to comply with certain rules for obtaining or
ratifying their registration with the Ministry of Justice. While the
ordinance′s language says nothing about it, we believe it may initiate a
gradual process towards ending of "unicity" system (i.e. only one
trade union is compulsory for all employers and employees involved in the
company′s business in a certain region), granting businesses and workers freedom
of association and an alternative representation system with multiple trade
unions, that may suit them best.
2. Provisory Measure of
“Economic freedom”:
On April 30th, President Jair Bolsonaro signed Provisional Measure No
881, known as "MP of Economic Freedom," to provide for a set of
measures to simplify businesses in Brazil and reduce bureaucracy. The most
relevant aspects are: I withdrawal of pre-authorizations for new low-risk
enterprises; (ii) freedom to employ and generate income at any time or on a
weekday provided that environmental laws, property rights, neighborhoods
and labor laws are respected; (iii) equal treatment of any public
institution; (iv) free stipulation of business transactions by contracting
parties; and (v) new concepts regarding the liabilities for companies that
belong to the same economic group. Although the MP has an immediate effect
of up to 120 days, it is necessary to have the subsequent approval of the
National Congress to convert into a law.
3. Employers cannot expose
women during pregnancy and breast-feeding to unhealthy activities:
On April 30th, Supreme Court Justice Alexandre de Moraes upheld the
National Metalworkers Confederation’s request to avoid exposing women to
unhealthy activities during pregnancy and breast-feeding. The decision
interrupted the effectiveness of the Labor Reform Section, which allowed
workers to carry out low and medium-level unhealthy activities unless they
submitted a temporary absence medical certificate. Alexandre de Moraes
argued that maternity and child protection are social rights that cannot be
abolished due to the burden of presenting medical certificates for not
performing unhealthy work and therefore determined that pregnant and
breastfeeding workers should be removed from unhealthy work without
prejudice to their compensation. The Court will review the case′s
substance.
4. High-performance
premiums. How labor courts interpret the new law remains to be seen:
The labor reform brought a new concept of premiums payable as a higher-than-usual
performance recognition, eliminating the amount for calculating payroll
costs and social contributions. Some companies have since interpreted the
new law as it released all payroll and social contributions over existing
premiums or bonuses, which is a mistake. Practically speaking, this new
legislation does not cover either contractual premiums/bonuses or those
typically part of hiring offers or internal policies. Only occasional
premiums/bonuses can be treated as exempt from the respective labor and
social contribution costs, and at this point we are still waiting to see
how the courts will decide on the legal hypotheses.
5. Extrajudicial settlement agreements: What to expect? The labor reform law also introduced the extrajudicial settlement agreements on which the parties can negotiate and submit a settlement for ratification to a labor judge, mitigating the risks that may arise from voluntary employment separation. However, employers still face some challenges as the judges rejected several settlements or limited the release to amounts paid, which means the employee can file a new lawsuit seeking labor rights not included in the settlement agreement. Labor courts pay increasing attention to settlement terms and tend to refuse approval where, for example, payment amounts are unreasonably below regular labor rights rates. Labor judges also limit release effects if the employee belongs to lower-level personnel. On the contrary, higher-educated employees who have been paid a salary higher than twice the public pension limit (BRL 11,678.90) are considered to be high-level employees ("hipersuficientes") and thus have a clearer understanding of what is negotiable, and this aspect greatly increases the chances of approving the settlement agreement. 6.
Teleworking: What are the challenges for business?
Labor Reform also introduced a set of rules on how companies can engage new
employees or offer their current employees to migrate from an internal
position to a teleworking position, where employees perform their
assignments outside the premises of the company using communication
technologies. In short, the parties must enter into a specific teleworking
agreement to outline work-related terms and conditions, such as how to
reimburse the work-related expenses, whether the employee would be required
to attend the employer′s premises, the ineligibility of overtime pay, among
other relevant aspects. Engaging teleworkers, however, usually poses at
least two challenges: (i) employers are no longer able to monitor employee
productivity by looking at the control of working hours, and must focus on
the results, otherwise teleworkers may be considered to be subject to a
working hour control scheme and thus eligible for overtime pay; and (ii)
employers and teleworkers must agree with certain rules on reimbursement of
expenses and health and safety aspects. For instance, the new law is
unclear as to how teleworkers are covered by health and safety laws and
whether they should be calculated for the purposes of scouting the Internal
Commission for Accident Prevention ("CIPA").
In view of this new legal scenario, telework arrangements require a policy
that clearly sets out all the criteria for teleworking employees to carry
out their assignments, how their performance will be assessed and the need
to meet deadlines, their availability for short notice meetings, receiving
and returning calls, and also a description of certain aspects that may
lead to employees resuming their internal job position.
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