The disputed limitation to labor outsourcing, approved by Supreme Decree 001-2022-TR, was suspended. A resolution of the Tribunal for the Defense of Competition of Intellectual Property of Indecopi, which was published yesterday, ordered that the National Superintendence of Labor Inspection (Sunafil) must refrain from applying “the prohibition of outsourcing activities that are part of the core of the business ”.
This action follows a complaint filed on April 4, 2022 by Cosapi Minería SAC before the Commission for the Elimination of Bureaucratic Barriers of Indecopi for the alleged imposition of illegal and unreasonable bureaucratic barriers.
Labor lawyer Jorge Toyama told this newspaper that “it is the first time that the institution has suspended a decree of this government,” and stressed that the resolution is general. In other words, it does not only apply to the complaining company.
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“This means that companies can continue to outsource and contractors will continue to operate. Indecopi is saying, in other words, that freedom of enterprise must be respected,” he pointed out.
Although the Executive can appeal to the Judiciary to present an action against the resolution of the regulatory body, Jorge Toyama explained that as long as this process is carried out, what is indicated by the Court governs.
“The resolution has suspended the limitation on outsourcing, but we have to wait a few months for a resolution to be issued confirming this and the decree can now disappear,” he said.
Meanwhile, Mónica Pizarro, a labor lawyer and partner at Estudio Echecopar, associated with Baker McKenzie International, explained that all the inspections that Sunafil would carry out and that are related to outsourcing will be without effect for now.
“For the sake of legal stability, it would be good for Congress to vote once and for all on the projects to repeal the supreme decree and for us to return to the previous situation in which the restriction did not exist,” he said.
But he also considered that these types of regulations should be discussed in the National Labor Council and not approved “by horseback”.
fines
Yesterday afternoon, the Ministry of Labor and Employment Promotion (MTPE) questioned the decision of the Indecopi Court, assuring that “labor rights are not ‘bureaucratic barriers'” and noting that it will continue “with the defense and respect of the rights of outsourced workers.
What if the resolution is unknown? The legal manager of the Lima Chamber of Commerce, Álvarez Gálvez, explained that if Sunafil does not comply with the measure, she can be fined up to 20 UIT (S / 92,000).
The labor expert and partner of the Muñiz Study, Ricardo Herrera, specified that the inspectors who continue with the visits to the companies with the purpose of auditing in this area can “be criminally denounced for abuse of authority.”
“The MTPE can challenge Indecopi’s decision in the Judiciary, but in the meantime it has to abide by the measure. And if it files an action against Indecopi, it would be the Executive against the Executive and that is not usually seen,” he asserted.
FACT
- The resolution states that Sunafil must refrain from applying “the requirement to consider as distortion of outsourcing when the posting of workers by the outsourcing company is carried out for the development of activities that are part of the business core.”
