Additional Hours In Relation To Employment Contract In Peru

Additional hours in relation to employment contract in Peru

Preliminary issues.

By conducting a study regarding these hours in the employment contract in recent years in Peru, it can be analyzed that, being linked to a contract, these hours are considered out of full time, which must be paid with thePayment of the salary.

According to the Ministry of Labor, in Peru, the hired person must have a work that does not exceed or exceed 48 hours per week, not taking into account the time designated for the refreshment

Agree the D.S. Nº 008-2002, the Law of Work Day, Schedule and Work At Employment, it must be kept in mind that every 1 extra hour has an amount of compensation, having 25% for the first two overtime and 35% for the hoursremaining, being an additional income for the activities carried out outside the ordinary.

Taking into account that such an essential element is voluntarily except for justified or force majeure, harmony must be maintained between both parties.

The work at this time implies the effective provision of services for the benefit of the employer. Generating in the worker changes in work performance, excessive load, until resignation, and health problems (work overload stress) so that on monthly average it will not be able to exceed 4 fifths of the ordinary day. Likewise, the payment of these activities provided under this time must be carried out within the following month of which the entity or the company must be sanctioned under the established norms,.

In this regard, studies are used to be able to analyze from different perspectives and in order to propose solution alternatives, as will be developed in the present research work.

In this aspect, it is essential.

Over time in work activities

Definition of work at overcome hours and justification

The work of over time is the extended hours in the workplace legally or conventionally and by which remuneration is carried out. (Vilela, 2006)

This time is done in cases that cause circumstances that require an extension in the place where it develops or works (Monereo J. & Gorelli J. 2009, pag.137);specifying that the need to maintain the productive effort or also satisfy the objectively for the benefit of the company. Resulting to be a mechanism that is mainly granted to the employer in order to face operational needs, analyzing from a logical point of view, this can be an alternative to increase flexibility in matters in working hours.

Faced with what the work in this designated time implies, it is any work done in excess or outside the ordinal either daily or can also be weekly. (Garcia 2009, P.33)

Therefore, this is created as a strategy to face the operational needs of the employer, but in turn it is limited to work activity and its exceptional nature.

Precepting from the legal field.

In Peru, the working day is regulated by Supreme Decree No. 007 2002-TR, corresponding to the Single Ordered Text of the Law of Work Day, Schedule and Labor at Employment (LJTS), in addition to the Regulation, approved by Supreme Decree No.008-2002-TR. Therefore, article 9 of the LJTS determines the possibility that the worker agrees with the employer the work in overtime, provided that it is voluntary and the payment of a surcharge is generated.

It can be voluntarily in a employment contract.

There is a principle in relation to work during overtime, called voluntariness. That is, no person can be forced to work overtime, except when necessary, depending on the people or property of the work center, such as the continuity of the productive activity, pointing out that they cannot do it without authorization from the company either. (Haro 2005).

Therefore, the overtime agreement voluntarily can not only be written can also be verbally, that is, the norm does not oblige a specific formality. In this regard, the Civil Code establishes the rules for the formation and validity of a contract, as well as provides under what assumptions a contract will be null. Indicating article 143 of the Civil Code, a contract could be concluded in the agreed form between the parties, unless the law designates a different form.

In accordance with the provisions of article 4 of the Single Ordered Text of Legislative Decree 728, approved by Supreme Decree 003-97-TR,-Labor Productivity and Competitiveness Law, states the following: “In any personal benefit of paid services andsubordinates, the existence of an indeterminate term employment contract is presumed. The individual labor contract can be held freely ”

According to article 10 of the LJTS, the volunteer work work must be given under the following rules:

1. There must be a voluntary agreement between the worker and the employer
2.  This agreement can be express, verbal or tacit.
3. If the permanence of the worker is accredited in the assistance control, the employer’s tacit agreement is presumed to the generation of overtime.

4. If there is no assistance control, the worker must demonstrate the provision of services by any means.

It can be forced.

According to the Ministry of Labor and Employment Promotion, no one can be forced to work hours outside work, except in cases of force majeure that endanger the lives of people. (Mintra, 2012).

If the occasion was given or the case that is mandatory for the worker, it must be paid as established in the LJS (25% or 35%). In this regard, it is pointed out that “the development of overtime has been considered mandatory for the worker when peremptory and unpredictable needs are presented, such as production tips, unforeseen absences of workers, problems generated by shift changes, etc. (Monereo j. 2009, pag.145-146).

Conditions for the realization of this time.

According to Castillo et al (2014), it indicates the following conditions:

•  The work as an over time is voluntary for the worker and the employer, their granting and realization are volunteers and must be the result of an agreement.
• If the extra hours made by the worker are imposed, the employer must pay compensation to the worker.
•  Only in justified cases in which the work of the workers is indispensable to the consequence of the case that endorses the people of the work center or the continuity of the productive activity, the provision of the overtime is mandatory is mandatoryFor the worker, and must be paid.
• The work at above can take place before the time of admission or after the exit established by the employer.

Consequences to exceed its respective limit and sanctions.

Once the work schedule has been established, the supplementary work enters into consideration and, when it is executed in day or nocturnal day, the corresponding surcharge would apply. (Jaimes N, 2019)

In this regard, the Ministry of Labor has the power to investigate the behaviors that violate labor guarantees and rights. As well as apply sanction to the employer for the abuse of the established legal rules. (Mintra, 2012).

The sanctions apply according to the following criteria:

1. Damage or danger generated to the legal interests protected.
2. Economic benefit obtained by the offender for himself or in favor of a third party.
3. Recidivism in the Infraction Commission.
4. Resistance, negative or obstruction to research or supervision action.
5. Use of fraudulent media.
6. Degree of prudence and diligence with which their homework has been attended.
7.  Relucting or contempt in compliance with the orders given.
8. Express recognition or acceptance of the infraction.
9. Serious violation of the human rights of workers.

In this sense, the sanctions are operated before the ordinary labor judge and compatible with others that are discriminated against the employee as a result of an indirect dismissal.

Limits that addresses the expansion of this time.

Article 25 of the Political Constitution of Peru (1993) states that the ordinary work day is 8 hours a day or 48 hours a week, at most, the day cannot exceed these limits;However, the LJTS establishes the possibility of performing overtime, it also points out that the time worked that exceeds the daily or weekly day will be considered as an attempt.

In conclusion.

We can deduce that overtime can be financial compensation for the worker, but reduces his rest time. In this sense, the expansion of the working day also affects collectively, it can be a reason for demotivation over labor charge.

On the contrary, these overtime should be taken to obtain higher income and voluntarily, complying with the constitutional rules and norms established for both the employer and the worker. In Peru, work is an element that has not undergone changes in recent times, which allows people to make excessive balk, threatening health, personal performance and especially right to leisure.

Bibliographic references.

1. Vilela, a. (2006). Labor Compendium. Lima: Labor Advice and Analysis S.A.C.
2. Monereo, j. & Gorelli, J.(2009). Working time and vital cycles. Granada, Spain: ed. Comares.
3. Garcia, p. (2009). Labor Law. Lima: Jurista Editores
4. Supreme Decree No. 008-97-TR (10/10/1997). They approve regulatory rules of the Law on Work Day, Schedule and work at above (LJTS). Recovered from: http: // spij.Minjus.Gob.PE/LIBRE/MAIN regulations.ASP
5. Haro, j. (2005). Individual Labor Law. Lima: Editor Rao S.R.L.
6. Supreme Decree No. 003-97-TR (03/27/1997). Single text ordered (TUO) of Legislative Decree 728 – Law on Productivity and Labor Competitiveness (LPCL). Recovered from: http: // www2.congress.Gob.PE/SICR/CENDOCBIB/WITH4_UIBD.NSF/BE35EA4B0DF56C0A05257E2200538D4C/$ FILE/1_DECRETO_SUPREMO_003_27_03_1997.PDF
7. Mintra. (2012). Ministry of Labor and Employment Promotion. Retrieved at: http: // www.mintra.Gob.PE/Files/File/Legal standards/ds_007_2002_tr.PDF
8. Castillo et al (2014). Compendium of Peruvian Labor Law. Sixth edition. Lima: ECB Editions S.A.C
9. Jaimes, n. (2019). Overtime on the ordinary work day: consequences to exceed its limit. Retrieved at: https: // Update.com/Hours-Exras-in-the-jornada -ordinaria-de-work-consequences-by-sur
10. Political Constitution of Peru (1993). Social and economic rights http: // www.congress.Gob.PE/DOCS/FILES/DOCUMENTS/CONSTITUTIONPARTE1993-12-09-2017.PDF