by Dr. Jorge Vásquez Rendón
Professor Emeritus at the Universidad Nacional Mayor de San Marcos.
Docteur en Droit by l'Universite de Paris I (Sorbonne)
NEW LABOUR LAW LITIGATION: best left in abeyance
On January 15, 2010 was published in the official text of the New Labour Procedure Act, 29 497, but not to take effect the next day, but six months later. And yet, not immediately, but "the opportunity to progressively and district court has "the Executive Council of the Judiciary (9 ª DC). So far, that opportunity has come to them, timid and cautious, to Tacna (R. Adm. 236-2010-CE-PJ), Cañete, Yauyos and Mala (R. Adm. 276-2010-CE-PJ); Trujillo and other provinces of La Libertad (R. Adm. 295-2010-CE), Arequipa (R. Adm. 331-2-1-CE-PJ) and Cusco (R. Adm. 368-2010-CE-PJ; in total, about 15 labor courts already exist in areas with relatively small numbers of dependent workers. not created any new court or room.
Why?
The implementation of the New Labour Law Litigation is very expensive. To meet the new accumulated caseload would require a number of judges of first instance and labor room four to six times higher than the existing, which in plain language means that, if this Act were applied throughout the country, not increased the number of judges and facilities, work processes, which currently lasts three to six years with Law 26326, would be extended to ten or more years. With Supreme Decree 007-71-TR, 1971, ending no later than six months after filing the lawsuit. There is progress, as seen in duration and complexity ....
seems that the lawmakers had dispensed with the cost-benefit. No studies have been based on the labor caseload. Have chosen to ignore the number of daily demands of work entered in each judicial district and the number of sentences in each instance and the Supreme Court during that period. If you are 100 requests received per day and 30 the judgments, the deficit is 70%.
judicial activity already work the State has a hard time now for the high salaries of judges and the elements required to perform. And the court fees but fail to fund it at a reduced rate. Would you have been assigned to the Judiciary in the Budget this year the necessary resources for implementation of the New Labour Procedure Act? Obviously not. It is as if lawmakers had left in a place a sophisticated car without fuel, without a proper road and a driver does not properly trained to drive. We all look with curiosity, but there would be detained and useless.
For members of the committee of lawyers called to prepare the draft of this law, suggest new ideas and debate was, perhaps, the opportunity that had been waiting to show off his wisdom and commitment to the principles of orality and immediacy as innovations spectacular around which gravitate the new process should work. It mattered little that a hearing of this ideal process had to take three hours to complete in a report that would not cover the conduct of all the evidence admitted, nor that a judge could only attend a hearing in the morning and afternoon, or The review and signing of the release will take about three hours, and that the wording of the judgments remain as a homework assignment, to be held in the evenings, Saturdays and Sundays, and often accompanied the bustle of home. There is no record anywhere that labor judges and their representative bodies have been considered and even less critical of a procedure that already have not obviously either, that New Labour Procedure Act will entail. Criticizing is not part of their function. If the procedural deficit increases will not be liable. They will continue taking the number of sentences that could properly by day, month and year.
The employment relationship is relatively simple. Links to an employer and an employee for the performance of dependent work and payment of remuneration. While these benefits are divided into several stages, do not give a complex and intractable. The doctrine and practice have become diaphanous entities, certain and manageable for its players, professionals working in them and the judges work. Moreover, documents relating to the employment relationship, such as payroll and payslips and attendance record, let know a great extent. So, correspondingly, the work process knowledge and bill of rights could be simple, single, brief, written, except for hearing, taking investment axle load test. This principle, which puts on the employer's obligation to prove compliance with its obligations, provides access to real truth, not just legal. Supreme Decree 007-71-TR was strict in applying this principle. "The ruling upheld the claim -Available-: of the points where the burden of proof, the defendant has not proven. "(Art. 50-b). 26636 Act also placed the weight of the burden of proof on the employer to say, "It is for the defendant employer to prove compliance with their obligations under the laws, collective agreements, custom, rules of work and individual contract job. "(art. 27 º -2). But wiped out the effect of this principle in the sentence, and replaced it with a can weighing of evidence by the judge "together, using their reasoned assessment" (art. 30 º). The Law 29497, the employer's obligation to prove certain facts survives, but also deprived of legal effect if the breach, and, incidentally, has eliminated the assessment of evidence by the judge, who thus becomes a kind of autocrat in the process.
Much of the work process is triggered by layoffs in fact, without the essential formalities, or the mere allegation of a cause attributable to the worker. If the dismissal is in fact or without the essential formalities, which would be for the immediate reinstatement of the worker in his job. But this is not the meaning of Legislative Decree 728. The process initiated by the worker must take its course so that Finally, after several years, the worker, if you win, you can operate in a complementary process of implementation. Where the dismissal of the complaint comes just cause, although the burden of proving its existence to the employer, in practice every day, is the worker who must prove that the cause has not been produced, and of course, follow also the result of the process, after several years of litigation.
Recently, the President of Argentina, Cristina Fernandez de Kirchner referred to the existence and prosperity of an "industry view" to criticize the system Work injury compensation in the hands of private insurance companies. As they pay very little, affected workers or their relatives have no other way than the courts, where, generally, get the compensation awarded to them, they must share with their lawyers.
With Law 26636 and the New Labour Procedure Act has also been stimulated in our country a "labor lawsuit industry." But the other way for employers and workers.
For some employers, not paying wages, no full pay or default payment of duties social is presented as a profitable business. With Decree Law 25920 of 27/11/1992, the employer, to finish the work process would be sentenced only to pay the "working interest" less than "legal interest" provided by art. 1244 of the Civil Code. She is preferable, therefore, expect to be sued and ordered his defense to a law firm specializing in labor issues. Even adding the fees to which he had to pay the worker if unsuccessful, would cost more expensive to borrow from a bank a sum of money equivalent. But would also have the chance to win the trial and not pay anything to her opponent.
Workers, the procedural means to pay their attorney fees. Something must give when starting the process according to their economic capacity, and then usually subjected to the contingency fee is usually up to 30% for the lawyer to obtain the final.
In this game, all the lawyers win. Both the Law 26636, as 29497, appear to have been designed for them, and not for employees.
A complementary perspective of this deplorable situation is the heavy atmosphere in the social landscape, ornate mistakes that have increased as indicated.
If you can not void the New Labour Procedure Act by another law immediately, the Executive Council of the Judiciary should be put on hold until the Congress, in its new form after 28 July this year, the reconsideration and resolution.
JOB ANALYSIS-FEBRUARY 2011-EFTA
