The new provisions on the application of labor outsourcing will take effect from next August 22 but not for all companies, according to the modifications of Supreme Decree No. 001-2022-TR. According to Jorge Toyama, a labor lawyer, to date the Judiciary has approved more than 70 precautionary measures for different companies that have filed an amparo action against the rule that, according to experts, restricts in practice the figure of labor outsourcing.
Additionally, Indecopique’s Bureaucratic Barriers Commission reported in mid-July that received 92 complaints against the norm– It would have already delivered 40 precautionary measures to alleviate the effects of the new regulation.
“When the precautionary measures are approved, what is being recognized is that there are reasonable signs that the norm violates the Constitution and slows down private investment. What he sees is a clear inclination to agree with the companies, even a jurisprudence of precautionary measures is being created, both the Judicial Power and Indecopi agree in pointing out that the measure is unconstitutional, ”he commented in conversation with Management. In fact, he adds that state companies in the energy sector have also resorted to legal channels. “This shows that the measure is unfeasible, if they comply with the standard they will lower their efficiency”. The mining, manufacturing, massive and fishing sectors have also obtained the precautionary measure.
Now the 100 companies have passed (last July there were 50) that managed to get rid of the application of the new modifications, with a few days left for the National Superintendence of Labor Inspection (Sunafil) to start with the inspections, although it has not yet issued the necessary guidelines.
The Ministry of Labor and Employment Promotion (MTPE) published last February, with the consent of President Pedro Castillo, the rule that modifies the regulation that regulates labor outsourcing services to prohibit their use in the case of activities that are part of the ‘ core of a business’, a concept that -previously- Toyama had pointed out It is left to the interpretation of the ministry and not necessarily of the company.
According to the current law, labor outsourcing refers to the hiring of a third company to carry out specialized tasks, this is the one that has a direct relationship with the workers hired for that purpose. Real estate agencies are an example, since they are in charge of project design, but outsource construction and decoration, for example. “By not allowing these services to be outsourced, their efficiency is reduced, as well as the profitability of the company. We are not against bad outsourcing practices being sanctioned, but this does not mean that it should be restricted at all levels”, adds Toyama.
Lawyer Jorge Toyama reported that the companies are also resorting to precautionary measures to nullify 20% of the new rules on collective bargaining. That is, regarding the articles that only allow unions to go to arbitration and not the company; as well as provisions that would not allow the company to replace a striking worker.