"The most productive work is the one that comes out of the hands of a happy man." Victor Pauchet.
"Labor law is one of the rights with the lowest compliance rate… so, I don't know what we do here…". Elmer Arce.
From the beginning
This installment is doomed to the necessary analysis about one of the labor figures, called “non-labor or non-autonomous”, the same one that was and has been subject to a problem, denaturing as special attention and expectation on the part of its actors (employer, "worker", legislature and judiciary) - as well as the legal and non-legal community-; that is: The Administrative Contracting of Services (CAS), in the light of the iter or becoming effective of its Law and Regulations.
In the first place, it should be mentioned that the Administrative Contracting of Services owes its existence to the issuance of Legislative Decree No. 1057, published on 06/28/08 and its regulation via Supreme Decree No. 075-2008, published on 11/25 / 08, within the framework of the legislative powers delegated by Congress to the Executive, which had the imperative purpose of the implementation (institutional strengthening and modernization of the State) of the Trade Promotion Agreement (FTA) with the United States (it is understood that said country literally conditioned its signature to the previous correction of not a few as insurmountable requirements, by Peru); In other words, that by virtue of said Treaty the Peruvian State was forced (due to the aforementioned sine qua non condition) to build a greater number of highways,to grant greater access to the regularization of private property (greater number of public registrars), to the consolidation of legal security (increase in regular magistrates), etc., and of course, to the recognition of thelabor rights of workers; as it actually did (except, in estrictu sensu, the last one); since in section II. of this Report, we will see that this was not necessarily the case.
On the other hand, we have that the objectives pursued by the CAS, according to the Statement of Motives of Legislative Decree No. 1057, are: i) to allow access to social security, both in welfare and pension matters. With this, there will be not only protection in the matter of illness, accidents, etc., but also the right to leave and, in the long term, disability, old-age and survivors benefits, ii) recognize fundamental rights contemplated in the Political Constitution and in the relevant international instruments; and iii) provide appropriate regulations for contractual forms that to date had not been regulated by any regulations.
However, it should be noted that prior to the issuance of the aforementioned Legislative Decree, three regimes applicable to personnel in the service of the State coexisted: i) the general public or statutory regime (Legislative Decree No. 276), within which there are a series of special career regimes such as the prosecutor, judicial, etc., ii) the private labor regime (Legislative Decree No. 728); and iii) Non-Personal Services –SNP (Civil Code); now the CAS would be replacing the SNPs, with three regimes currently subsisting, each one regulated by different principles, procedures and criteria.
The paradox of its application
In that order of ideas, we have that although it is true that the CAS was apparently an advance in the search for equity in the recognition of rights of personnel at the service of the State, if compared with the now non-existent SNP, but it is a setback, as it seeks to promote equal treatment, uniformity and ordering of civil service regulations, in addition, in the midst of these regimes, it also seeks, without any self-confidence, to exclude public workers from labor regulations and conceal them within the framework of Administrative Law, but not within a statutory, meritocratic, equal opportunities, promotion, that is, the development of a public career, if not in a special contract, which generates more dispersion,the establishment of some or various levels or percentages of labor rights and which in turn continues to generate the contingency of a greater number of jurisdictional rulings that recognize the existence of a full employment contract within the framework of the regulation of private labor regulation, with the economic and social connotation that it matters. Ergo, according to what has been stated, it can be inferred that the CAS grant does not really constitute any advance.According to what has been stated, it can be inferred that the CAS grant does not really constitute any advance.According to what has been stated, it can be inferred that the CAS grant does not really constitute any advance.
In this sense, we affirm that the CAS comes from an illegal source, since it is the product of a fraud or simulation since the servers that were SNPs were imposed the CAS as a contract (for the purposes of their labor regularization), instead of maintaining their labor rights or, where appropriate, increase, in reality they were forced to renounce everything they had already achieved in legal terms, subjecting the recognition of said rights to absurd random variables, related to the needs of the public agency and their availability. budgetary.
Consequently, we have that the sui generis nature or legal situation of CAS is really an example of what in doctrine is called: “excluded or non-labor labor”, since despite being a personal, subordinate and remunerated service (and that contrary to this, it undoubtedly contains the existence of an employment relationship); It is unfairly excluded by legal mandate (and not legitimate) from the scope of Labor Law.
On the other hand, it is noted that the CAS has acted behind the back of the ineffective Framework Law of Public Employment, this is the origin of the denial of all guarantees and implicit rights to the hired (rented), via CAS, under the nature of the field of Administrative Law and not from its inherent as undeniable correspondence to the premises of labor law.
The CAS hiring, then, serves to clandestinely manage the reduction or reduction of the labor rights of the personnel hired under this modality, through the sole and pure decision of the Administration, unmotivated, by the way, even when the fundamental right is injured to work and contrary to the emerging contemporary procedural law more than ever: due process. However, it can be affirmed that the contracted via CAS, once his contract has been exhausted and in case he considers that his fundamental rights have been violated, he has expedited his right to go through the amparo process even without exhausting the previous route established in the same CAS regulations.
Thus, TOYAMA MIYAGUSUKU rightly explains: "we are dealing with people hired without a labor country, since the regulations designed by the CAS have a constant concern to keep them away from labor."
However, we see that the ordinary judiciary has recently recognized the existence of a CAS employment relationship.
Indeed, we have that the Superior Courts of Cajamarca and San Martín have established that said figure (the CAS) implies the existence of an employment relationship (regardless of its own regulation denying it - establishing it as an administrative and exclusive contractual modality of the State, away from Labor Law-); ordering the reinstatement of the plaintiffs in their jobs.
Thus, we appreciate that the first case was established via Sentence No. 055-2009-SEC, issued in the amparo process No. 2008-1703 by the Specialized Civil Chamber of the Superior Court of Cajamarca. This ruling was issued in a process where a person hired through CAS sued the National Institute of Culture of Cajamarca once her contract expired. The decision of the aforementioned Chamber (ad quem) confirmed that of the first degree (a quo) that declared the application for amparo founded and in turn ordered the reinstatement of the plaintiff in the work that, before the termination of the CAS, had been providing in the defendant entity.
The second case was set up through the Judgment issued in File No. 2009-0097 by the Moyobamba Itinerant Mixed Chamber of the Superior Court of Justice of San Martín. The aforementioned sentence was issued in the second instance of an amparo process where the Provincial Municipality of Rioja was sued. The decision of the Mixed Chamber confirmed the first degree sentence, which declared the amparo claim founded and null the letter that declared the CAS to be extinguished and, in addition, the reinstatement of the plaintiff in the position of public cleaning worker of the defendant state entity.
Likewise, we have the third Labor Chamber of the Superior Court of Justice of Lima, in the judgment corresponding to File No. 6508-2009 IDA (A and S), in the process followed by Juan Isaac Zavala Chaupin against the Productive Development Program Agrario Rural (Agro Rural), confirmed the judgment of first instance that denied the CAS regime to the plaintiff's case because it was contrary to the Constitution, providing for his recognition as a worker, as well as the payment of the requested social benefits.
In this vein, it can be seen that despite the fact that these types of decisions (about the employment relationship implied by the CAS) have not been issued by the Peruvian Constitutional Court (TC) or by the Supreme Court (CS), they are not must be unaware that they certainly constitute judgments with quality of res judicata (although of an ordinary nature and not yet constitutional) and that, for this reason, they feel pronouncements that generate forceful persuasive effects (in which the recognition of the labor principle par excellence of the principle of of the primacy of reality over form- also called: fraud to the law or denaturalization of labor, which constitutes a kind of attempt to circumvent Labor Law using figures that are inappropriate for a truly labor relationship -),at least in the judicial districts mentioned.
Regarding the recently reviewed judicial recognition of the existence of an employment relationship of the CAS, it is essential to specify that in terms of the relationship in question, three elements are necessary for it (not only in the case of CAS) configure, namely: i) a personal provision of services from a natural person to another natural or legal person under private or public law, ii) be under a subordination, and iii) service performed liable to be rewarded, that is, that there is remuneration in between.
Thus, we have that the reflections elaborated by HUAMÁN ESTRADA are essential to be able more deeply that the CAS regulations make a differentiation that must be classified as discrimination, while the proportionality analysis of the differentiating treatment of the aforementioned norm does not exist. justifying cause that validates the differentiation; Therefore, the CAS is a manifestation of a “(…) differentiating treatment of contracts through this regime and the workers of the private and public labor regime. It is a differentiating treatment because it does not recognize the labor nature of the legal bond, and, second, because it grants fewer benefits and labor rights than those granted by the former ”; It also points out that the differentiation is not proportional, as it does not pursue a constitutionally valid purpose,being unnecessary as there are other measures that would allow to achieve the same end and that were less restrictive, and finally the CAS regulations are not a weighted measure since there is no proportionality between the restriction and the advantages that are intended to be achieved; that is to say, according to the author we are "before a disproportionate average, which for this reason is unconstitutional".
Pretensions of the Congress of the Republic
Without prejudice to what has been developed in this work, we consider it appropriate to warn about what the Legislature is currently seeking, since recently (04/15/10) the Parliament's Work Commission (after evaluating several bills that sought to reform and, even repeal the CAS regulations, that is: Legislative Decree No. 1057); has issued an opinion, by which it intends to reform the regulations that regulate the CAS modality contract, proposing that it be considered as a modality of Labor Law.
The aforementioned document mainly indicates that this contract is a special and transitory modality typical of labor law and exclusive to the State. Likewise, it is established that the CAS is held for a specified term and is renewable, the maximum contract term being three years.
After this period, the contractor must be incorporated into the ordinary labor regime of the contracting entity, without prejudice to the fulfillment of the requirements of the competition of merit and capacity required by law. It is also established that the non-renewal must be justified in objective cause.
It also establishes that if the contracted person fulfills the duties of a trusted official or managerial official, the contracting entity can unilaterally terminate the contract, before the agreed term without any reason; On the other hand, if the functions that are fulfilled are those of a public servant, compensation must be paid as stipulated in the private labor regime in the event that there is a unilateral resolution of the contracting entity. This novelty is far from the current regulation, which establishes in the latter case a penalty equivalent to the benefits not received with a limit equivalent to the payment of two months.
Likewise, it is proposed that those hired via CAS should have an annual rest of thirty continuous calendar days per completed year (and not 15 days as established by current regulations). In addition, it is established that through the CAS the exercise of fundamental freedoms cannot be impaired, and, for this reason, any agreement or clause for the waiver of freedom of association or unionization or any other right becomes or is void.
conclusion
In conclusion, we can affirm:
i) Said "legislative errors" (SNP, CAS, etc.) are the causes that at present there is no prompt, due and orderly legal negotiation on the issue of public labor contracting, which is highly deserving of a ruling by the Constitutional Court (the same one that would be uncontrollably foreseeable as forcefully damaging to the State, since at the time it did the same in the case of the SNPs).
ii) Regarding the reasons why the State is currently sentencing against itself (that is, contrary to itself), it should not be explained but to another issue related to the recognition of the labor principle (applied to the CAS): "Before the same function, equal rights", together with its counterpart: "tuitividad, protection or tutelación", that of "legality" and mainly with the provisions of Article 23 of the Magna Carta (which legalizes: "no employment relationship it may limit the exercise of constitutional rights or lower the dignity of the worker ”) and its consequent unconstitutionality.
iii) The ordinary judiciary (although in a few but decided cases) has recently reversed in their respective judgments the nature or special administrative contractual modality (“not autonomous”) of the CAS, in labor.
iv) The issue / labor problem in comment has not only become paradoxical (to say the least), but it would be generating a potential and irrepressible barrage of labor actions (where language, pen and evidence would be undertaken in legal proceedings in ristre) raised by contracted under the CAS modality, against the state sector; causing in turn the most painful thing still, which is, the acceptance (of the pathetic as a geological recidivist error of the State), that if at the time of the enactment of the Law (CAS) and Regulation (RECAS), it was not to recognize labor rights long postponed (yesterday to the SNP, today to the CAS),in an attempt to save some money ("thanks" to the reckless as irresponsible fact that at the time they did not include the SNPs on the payroll - today CAS - and that incidentally according to the Ministry of Economy and Finance, until a few months ago said servers amounted to more than 90,000 nationwide), at the time the latter could easily generate (as they have been doing, as outlined in section II. of this) to the State much higher expenses than those it never wanted to assume, having to face an infinity of lawsuits and, if applicable, sentences (if not all) for replacements, payments for accrued rights, among others.as outlined in section II. of the present) to the State expenses much higher than those it never wanted to assume, having to face an infinity of lawsuits and in its case judgments (if not all) for replacements, payments for accrued rights, among others.as outlined in section II. of the present) to the State expenses much higher than those that it never wanted to assume, having to face an infinity of lawsuits and in its case judgments (if not all) for replacements, payments for accrued rights, among others.
That is to say, in short, paraphrasing Federico G. MESINAS MONTERO, we note that since the State has opted for the CAS (as always) for cheap, it would not only be clamorously expensive, if not very expensive (at margin of having not applied what is prescribed in the very Statement of Motives of Legislative Decree No. 1057); which is certainly of great concern.
v) Strike as a final note, refer to the fact that in relation to what has been outlined in this installment, what happened in the courts regarding the CAS, is unequivocally due to a form of tuning in with the great and unstoppable advance of quasi new systems, theories or trends that the Orb experiences (and with respect to which the Peruvian State cannot withdraw because it is not foreign or alien), that is, Global Law and specifically, Neoconstitutionalism, since the latter advocates the prevalence of the Constitutional State of Law (constitutionalist, principled- or overloaded civil law-; that is, it has the Political Constitution as a new order of values) in detriment, postponement or disqualification of the former Rule of Law (only and hardly legalistic or traditional or conventional civil law).All this to the undeniable benefit not only of the CAS, of course.
