Régimen Laboral CAS y Decretos Legislativos 276 y 728 - 16° Jueves Turquesa 20/04/2023

Introduction to CAS Regime

Overview of the Presentation

• The speaker welcomes attendees and introduces the topic of discussion, emphasizing its importance for both CAS personnel and those under Legislative Decree 276.

• The presentation aims to cover relevant points regarding the CAS labor regime without delving too deeply into legal norms.

Historical Context of CAS

• The CAS regime was established in 2008 to address issues related to non-personal service contracts that arose in the 1990s.

• The government recognized a demand for a more flexible employment framework, leading to the creation of what is known as "contractual administrative services."

Understanding CAS Contracts

Characteristics of CAS Contracts

• The CAS contract is a special labor agreement applicable only in the public sector, involving a natural person (the employee) and the state.

• It is distinct from other regimes such as public career systems or private activity regulations.

Legal Framework

• The governing legislation for CAS contracts is Legislative Decree 1057, which includes specific regulations ensuring legal security.

• This decree aligns with Law 29849, which outlines progressive elimination measures for the CAS regime while granting certain labor rights previously unavailable.

Eligibility and Application of CAS

Who Can Utilize the CAS Regime?

• All public administration entities can hire personnel under the CAS regime, excluding state-owned enterprises and public investment projects that follow different regulations.

Specific Employment Context

• Healthcare professionals connected to this discussion are eligible for hiring under this labor regime since they do not fall under excluded categories.

Key Features of Contractual Administrative Services

Essential Characteristics

• A fundamental feature of a CAS contract is its fixed duration; it is typically time-bound but renewable through additional agreements (ADNs).

• Another key aspect includes a maximum workweek limit set at forty-eight hours, with strict adherence required by contracting entities.

Compliance Measures

Understanding CAS Contracts and Labor Rights

Overview of CAS Contracts

• Employees under a CAS (Contract Administrative Services) can report employers to SUNAFIL if they are made to work beyond the legally established 48 hours.

• CAS contracts are fixed-term agreements that may be renewable, with a maximum work duration of 48 hours per week.

Key Characteristics of CAS Contracts

• Remuneration is essential; it must not fall below the current minimum wage, which is set at 1,025 soles.

• The pay for employees on a CAS contract cannot exceed 15,600 soles to maintain the integrity of the contract type.

• Modifications to a CAS contract can occur for justified reasons without necessitating a new agreement.

Conditions for Contract Modification

• Employers can transfer employees within the same organization as long as it does not alter their working conditions or remuneration.

• Changes must be based on objective needs rather than arbitrary decisions by employers.

Procedures for Hiring Under CAS

• The hiring process consists of four phases: preparatory phase, publication phase, selection phase, and contract signing.

Phase Breakdown

1. Preparatory Phase:

• Involves identifying service requirements and budget capacity before initiating recruitment.

2. Publication Phase:

• Job postings must be publicly accessible through institutional portals; failure to do so renders contracts voidable.

3. Selection Phase:

• Candidates undergo evaluation based on qualifications and competencies relevant to job requirements.

4. Contract Signing:

CAS Contract Benefits and Limitations

Overview of CAS Contract Benefits

• The CAS contract provides certain benefits to workers, including a minimum wage requirement that must not be less than the vital minimum wage.

• Workers under a CAF contract are entitled to paid vacations after one year of service, amounting to thirty days per year.

• Additional benefits include holiday bonuses of 300 soles during national holidays and Christmas, as established by annual public sector laws.

• Workers have access to health insurance through EsSalud with contributions capped at 30% of one UIT (Tax Unit).

• Other rights include maximum working hours (48 hours weekly), maternity leave, occupational safety regulations, union freedom, and risk work insurance.

Limitations of CAS Contracts

• Despite the benefits, CAS contracts restrict several important rights: no compensation for time served (CTS), limited holiday bonuses only during specific occasions, and lack of job stability due to fixed-term nature.

• Workers do not receive full gratuities like those provided for New Year or Christmas; they only receive the specified holiday bonus.

• The temporary nature of CAS contracts means workers can be removed without notice or cause, leading to job insecurity.

Automatic Renewal Provisions

• If a worker continues employment after their contract expires without formal renewal, an automatic extension is implied according to legal provisions in Legislative Decree 1057.

• This automatic renewal occurs unless the employer informs the employee at least five business days before the contract's expiration about non-renewal intentions.

Disciplinary Procedures for CAS Workers

• CAS employees are subject to administrative disciplinary procedures governed by civil service regulations when infractions occur.

Procedural Steps in Administrative Disciplinary Actions

Initiation of the Procedure

• The process begins with the generation of a document that initiates a sanctioning procedure, which must be communicated to the involved party for notification.

• Individuals have the right to defend themselves within five days by presenting their arguments against the alleged infraction.

Technical Report and Evaluation

• A technical report is issued within fifteen business days to assess whether an infraction occurred, guiding the sanctioning body on how to proceed.

• The sanctioning body can consider recommendations from the instructor's report but must justify any decision not to follow these recommendations.

Communication and Oral Defense

• Upon receiving the technical report, communication is made to inform the accused about its receipt and provide options for further action.

• Within three business days, individuals may request an oral presentation of their defense, potentially accompanied by legal counsel.

Conclusion of Proceedings

• After hearing oral defenses, the sanctioning body will determine if a violation occurred and notify within five days regarding any sanctions imposed.

• Understanding this procedural framework is crucial as it provides rights for defense and clarifies that notifications do not immediately imply punitive actions.

Characteristics of CAS Contracts

Nature of CAS Contracts

• CAS contracts are typically defined in duration; however, they can transition into indefinite contracts under specific conditions established since March 10, 2021.

Transition Criteria

• Certain requirements must be met for a contract to shift from defined to indefinite status; these include continuous service or completion of specified timeframes.

Legal Context and Challenges

• There was significant legal discourse surrounding these changes, including constitutional challenges that affirmed some aspects while leaving others intact.

Requirements for Indefinite Status

• To qualify as indefinite, employees must meet criteria such as performing permanent tasks at law enactment or having two years of continuous service or three years discontinuously.

Employment Entry Conditions

Understanding the CAS Contract and Administrative Career

Overview of CAS Contracts

• The discussion begins with the concept of a service contract, highlighting the transition from being a notary to becoming a landlord, emphasizing participation in indefinite case incorporation.

• It outlines requirements for transitioning from a fixed-term contract to an indefinite one, stressing the importance of understanding these norms for workers under CAS contracts.

Rights and Benefits of Workers

• Key rights and benefits associated with CAS contracts are discussed, including essential characteristics that workers should be aware of to assert their rights effectively.

• The regime aims to incorporate qualified personnel into public service while ensuring their permanence and development within the system.

Characteristics of Public Servants

• Emphasis is placed on meritocracy and qualifications as critical factors for public servants under Legislative Decree 276.

• Public servants must prioritize national development over personal interests, maintain continuous professional improvement, and perform duties with honesty and dedication.

Principles Governing Administrative Careers

• The administrative career is governed by principles such as equality of opportunity, stability in employment, guaranteed levels acquired, and fair remuneration based on a standardized system.

• All individuals meeting specified criteria have equal opportunities regardless of gender or geographic origin when applying for positions within this framework.

Obligations of Public Servants

• Public servants have specific obligations including personal accountability in fulfilling duties, safeguarding state interests, punctuality at work, and ongoing professional training.

Obligations and Rights of Public Servants

Obligations to Report Misconduct

• Public servants are required to report any criminal or immoral acts occurring within their entity to their superiors, ensuring appropriate action is taken according to legal provisions.

Fundamental Rights in Public Service

• Employees have the right to pursue a public career based on meritocracy, free from discrimination related to politics, religion, race, economic status, or gender. This ensures equal opportunities for all.

Job Security and Stability

• The law guarantees job stability for public servants; they cannot be dismissed without just cause as defined by law and established procedures. This protects against arbitrary dismissals.

• Dismissals must follow due process; unjustified terminations can lead to claims for reinstatement or compensation. Employees should be aware of their rights regarding termination procedures.

Compensation and Benefits

• Public servants are entitled to receive remuneration corresponding to their position, including bonuses and benefits as per legal standards. They also have rights related to leave, training courses, and administrative loans under justified circumstances.

Additional Rights and Protections

• Employees can accumulate service time with recognized university studies after 15 years of effective service; they also have the right not to be transferred without consent and can form unions legally. Additionally, they may exercise the right to strike as determined by law while distinguishing it from vandalism or unlawful actions.

Disciplinary Regime for Public Servants

Accountability in Public Service

• Public servants are accountable civilly, criminally, and administratively for adhering to legal norms during their service; disciplinary sanctions apply for violations of these norms.

Types of Disciplinary Sanctions

• Sanctions range from verbal warnings to written reprimands; more severe penalties include suspension without pay (up to 30 days), temporary cessation of pay (up to 12 months), or even dismissal depending on the severity of the infraction committed by the employee.

This structured overview captures key obligations and rights relevant for public servants while outlining disciplinary measures that ensure accountability within public service roles.

Understanding Legislative Decree 728

Overview of Legislative Decree 728

• Legislative Decree 728 is also known as the Law of Productivity and Labor Competitiveness, which regulates the labor regime for workers in activity.

• The decree aims to enhance worker competencies to consolidate their job performance, highlighting its significance in labor legislation.

Key Features of the Labor Regime

• It presumes a contract of employment for all paid personal services rendered under subordination, typically establishing an indefinite-term contract.

• Individual work contracts can be freely established for either indefinite periods or subject to specific modalities, including verbal or written agreements.

Employment Conditions and Modifications

• Employers have the authority to introduce changes regarding work shifts, days, hours, and methods of service delivery based on reasonable criteria aligned with workplace needs.

Probation Period Regulations

• The probation period lasts three months during which workers gain protection against arbitrary dismissal; this is crucial for job security.

• Parties may agree on extending this period if necessary for training or adaptation purposes but must document any extension in writing.

Suspension of Employment Contracts

• Various causes can lead to suspension of employment contracts such as temporary disability due to accidents or illness, maternity leave, vacations, civic duties, and military service obligations.

• Other reasons include disciplinary actions following a process and exercising the right to strike. Additionally, suspensions occur during detentions unless released within a specified timeframe.

Distinction Between Suspension and Termination

Extinction of Employment Contracts

Reasons for Contract Termination

• Employment contracts can be terminated by voluntary resignation or retirement of the employee, as well as upon completion of a specific project or service.

• Contracts may also end due to absolute permanent disability, retirement, or justified dismissal following proper procedures to avoid arbitrary termination.

Justified Causes for Dismissal

• Article 23 of Legislative Decree 728 outlines justifiable reasons for dismissal, including physical, intellectual, or sensory deficiencies that prevent job performance despite reasonable adjustments.

• Performance-related issues can also lead to dismissal if an employee's output is below average compared to similar roles.

Medical Compliance and Conduct Issues

• An unjustified refusal by an employee to undergo mandatory medical examinations can result in dismissal; employers are required to conduct these exams biannually.

• Article 24 specifies causes related to employee conduct that justify dismissal, such as serious misconduct and criminal convictions.

Hostile Work Environment and Equivalent Acts

• Actions deemed hostile towards employees can equate to constructive dismissal. This includes non-payment of wages without valid reasons and unjustified demotion.

• Other hostile acts include transferring employees intentionally to detrimental positions affecting their health or safety.

Discrimination and Moral Violations

• Acts of discrimination based on sex, race, religion, etc., along with any actions undermining the dignity of workers (e.g., harassment), are significant violations warranting serious consequences.

Understanding Worker Rights and Dismissal Regulations

Overview of Dismissal Rights

• Discussion on worker rights related to dismissal, referencing Article 34 of Legislative Decree 728, which outlines that dismissals based on conduct or capacity do not warrant compensation.

• Clarification that if a worker is dismissed for just causes related to their ability or behavior, they are not entitled to indemnity.

Indemnity and Legal Recourse

• Explanation of the right to indemnity if the dismissal is deemed arbitrary due to lack of cause or inability to demonstrate justification in court.

• Workers can simultaneously demand payment for any other pending social benefits alongside indemnity claims.

Null Dismissals and Reinstatement Options

• In cases of null dismissals where a judge rules in favor of the worker, they may choose between reinstatement or receiving an indemnity.

Collective Contract Termination Causes

• Introduction of objective causes for collective termination of employment contracts, including economic reasons, technological changes, structural adjustments, or force majeure events.

Contractual Duration and Nature

• Explanation regarding the transformation of fixed-term contracts into indefinite ones under certain conditions such as continued work beyond contract expiration without renewal.

• Details on how ongoing service after project completion also leads to reclassification as indefinite duration contracts.

Fraudulent Contracts and Their Implications

• Discussion about situations where workers may be misled into signing part-time contracts while working full-time hours; this constitutes fraud leading to indefinite contract status.

Comparative Analysis: Vacation Benefits Under Different Legislative Decrees

Vacation Entitlements

• Both Legislative Decrees 276 and 728 provide thirty calendar days for vacation entitlement after completing one year of work.

Fracturing Vacation Days

• Both decrees allow vacation days to be split into segments up to seven natural days. Additionally, both permit exceptional splitting into half-day increments capped at seven business days.

Accrual Conditions

Understanding Vacation Accumulation and Compensation

Accumulation of Vacation Periods

• Workers can accumulate vacation periods, but only up to two. If four periods are accumulated, the excess two lose their effect.

• If a worker ceases employment before taking vacations, they are entitled to total remuneration for the accumulated labor cycle.

Rights Regarding Unused Vacations

• According to Legislative Decree 728, if vacations are not taken, workers have the right to triple compensation: payment for work done, remuneration for unused rest, and indemnification.

• In case of a worker's death, compensation is provided to their family under Decree 276; however, Decree 728 specifies that if a worker leaves before enjoying their vacation, they receive total remuneration.

Permissions and Regulations

• Legislative Decree 276 allows exceptional and justified permissions for workers. In contrast, Decree 728 does not regulate permissions but allows entities to grant them based on internal regulations.

• Under Decree 276, workers can take time off from work without exceeding one day’s worth of hours in a month.

Specific Types of Permits

• Workers may request permission for university teaching or higher studies with a maximum absence of six hours weekly under Decree 276.

• The law provides lactation leave: one hour daily until the child turns one year old after maternity leave ends.

Comparing Licenses Between Legislative Decrees

License Types and Remuneration

• Both decrees provide licenses with pay; however, specifics differ. For instance, under Decree 276 there are five days' leave for the death of a direct relative.

• Other types include official training leave (up to two years), military summons leave, and various parental leaves (maternity/paternity/adoption).

Differences in Leave Policies

• While both decrees allow paid leave for direct relatives' deaths, only Decree 276 specifies the number of days allowed.

• Both decrees also cover serious illness or accidents affecting either the employee or their immediate family members.

Unpaid Leave Provisions

• Under both decrees, unpaid leave can be granted for personal reasons; however, only Decree 276 specifies a limit of up to ninety days within a given period.

Labor Regulations and Benefits Comparison

Marriage Leave and Family Illness

• Employees can request leave for marriage, which may be deducted from vacation time.

• In cases of serious illness of a direct family member, employees are also entitled to leave that counts against their vacation days, with a maximum limit of thirty days.

Bonus Structures in Labor Regulations

• The bonus structure under regulation 276 provides a personal bonus of 5% of the basic salary for every five years worked, without exceeding certain limits.

• There is mention of a differential bonus not regulated by law but based on federal differences and original regulations related to specific job positions.

Family Allowances and Additional Bonuses

• Regulation 276 includes an annual family allowance set by Supreme Decree, contrasting with the ten percent minimum wage allocation mentioned in regulation 728.

• A differential bonus exists for employees with children under age 24 who are pursuing higher education.

Gratifications and Year-End Bonuses

• Under regulation 276, gratifications (or aguinaldo) are provided twice yearly during national holidays and Christmas, typically amounting to around $300.

• Regulation 728 offers gratifications equivalent to one full salary plus an additional nine percent.

Compensation for Termination and Death Benefits

• For severance pay (CTS), regulation 276 stipulates compensation based on years of service: up to 100% remuneration after twenty years.

• In case of death, regulation 276 provides three total remunerations as a subsidy payable to the spouse or children; however, this benefit is not explicitly stated in regulation 728.

Summary of Labor Regimes