Leg. 1057 The Public Procurement of services and acquired labor rights under the legislation Peru

I. - Introduction: In the month of August of this year, I made a personal comment on the regulatory scope of Legislative Decree (DL) No. 1057 "Legislative Decree Regulating the Special Regime of the Public Procurement Service?. In turn, as in the present, we consider important to extend such a comment, since in Peru, after more than 20 years are corrected, in part, violations of the spirit of labor laws, as embodied in contractual relations, then called, services not personal legal relationship under which to June 2008 were about 90,000 Peruvian subjects. Also, we noted that although with the enactment of LD 1057 (hereafter DL), is evidence of improvement in labor conditions in the country, this measure is not a solution and complete adjustment to labor standards, especially if dated November 25, 2008 has been published in the Official Gazette El Peruano The Rules of the device, it has been approved by Supreme Decree (DS) No. 075-2008-PCM (the Regulations); body of law reduced that does own more than ratify the ends of the matrix and alleviate doubt standard applications of their reach before and after its adoption, which leads me to conclude that rather than seeking to provide the social insurance service for people who work under this regime, seeks to fulfill with some of the obligations arising from Free Trade Agreement recently signed with the United States of America (FTA), it requires the implementation of some legal mechanisms to overcome job insecurity and thus "prove? competitiveness to the demands of its implementation, framed within the minimum requirements established by the International Labour Organization (ILO).

It's worth noting that this new procurement system (not to call labor system itself), is applicable to all public agencies subject to Legislative Decree No. 276, Basic Law of the Civil Service and Public Sector Wages and other regulations special administrative careers, also public entities subject to the labor of private activity, except for state enterprises. In this regard, originally promulgated the regulation of Decree No. 1057 is important to comment fully defined at this body of law especially so in a dogmatic consistent power envisions future scenarios and to demonstrate labor rights that emerge from their devices for the working masses. II. Analysis: 1. From Definition: We have stated that Legislative Decree No. 1057 provides in Article 3, the "Contract Administrative Services constitutes a special form characteristic of administrative law and deprivation of the state, which is not subject to the Law on the Civil Administrative labor regime of private activity or other forms governing special administrative careers and that does not apply to contracts for consulting services or advice provided to develop autonomously, outside the premises or facilities work of the entity.

The regulation added in Article 1 also this contract is a contractual arrangement administrative and custodial State which links to a public entity with an individual who provides services on a non-autonomous, governed also by public laws and gives the parties only benefits and obligations established by Legislative Decree No. 1057 and the benefits embodied in the corpus juris. 2. Duties of the servers subject to Recas: Article 7 of Decree states that "public officials or persons engaged in recruiting non-self serving outside the rules of this system, incur administrative fault and, consequently, are civilly liable for damages arising which the State?. The wording of the standard under review, it is questionable to be established on the one hand its application to all state entities that are governed by Law 276, Law on the Civil Administration, and other workers provided they are not subject to it, especially if the rule itself regulates the administrative responsibility of those who are included within its scope, on the other hand, the rule itself, flows that aims to ensure the principles of merit and ability, equal opportunities and professionalism public administration, rights regulated by Legislative Decree No. 276 and the regulations approved by Supreme Decree No. 005-090-PCM.

Now, if the guidelines are not applicable administrative careers or devices on the private labor law, protected by the fact that the regulations provide that remarriage is governed by rules of public law, we conclude that the disciplinary provisions have at least the criteria set out in Law No. 27,444 General Administrative Procedure Act, the legal body that regulates the principles verborectores to implement the sanctioning power of the state, including: Legality .- By which requires only a rule with force of law can be attributed to the sanctioning authority entities and the consequent provision of the administrative sanctions that are possible title applied to a managed, which in no case will enable to provide for the detention. Due process, through which entities are required to apply sanctions subject to the procedure, respecting the guarantees of due process. At this point, with the enactment of Recas entities are required to prepare guidelines and / or procedures to determine the prosecution. Reasonableness .- By this principle, the authorities should provide that the commission of punishable conduct is not more advantageous for the offender to comply with the rules infringed or take the penalty, and that the determination of the penalty it considers criteria such as whether or not of intent, the injury, the circumstances of the commission of the offense and the repetition in the commission of offense.

At this point, it is necessary to specify that the DL 276 in Article 27 º and 28 º set comprising determinacy work record and negligence in the performance of work. Typicality .- Only behaviors constitute violations punishable administratively expressly provided for in regulations with force of law through their characterization as such, without admitting extensive interpretation or analogy. The implementing regulations can specify or grade aimed at identifying those behaviors or determine penalties, new behaviors be punishable with those provided by law, except where allowed by law, establish by regulation. Retroactivity .- This procedural principle is even a constitutional connotation, so that an application of pure theory of law enforcement is a sine quanon. Implies that only apply the penal provisions in force at the time of committing the behavior given in the sanction, unless the following are more favorable. Contest Violations .- When the same conduct qualifies as more than one violation the sanction for the offense more serious, notwithstanding that other responsibilities may be required to establish the law. Within this context it is logical that the civil and criminal liability is independent of prior administrative and judicial process is managed.

Causation .- The responsibility must rest with making the negligent conduct or active constituent punishable offense. Presumption of legitimacy .- An entity shall presume that the management have acted true to their duties until they have evidence to the contrary. Non bis in idem .- No successively or simultaneously may impose a penalty and an administrative penalty for the same act in cases of assessing the identity of the subject, act and foundation. As stated, it is obvious that the authorities and personnel in the service of the entities, regardless of their employment or contractual arrangements, incur an administrative fault in the handling of administrative procedures in charge and, therefore, are likely to be sanctioned administratively to reprimand, suspension, termination or dismissal depending on the gravity of the offense, the offense, the harm done and the intent with which they have acted in the performance of their duties under the contract. 2. On your requirements: it regulated as requirements for holding a Contract Administration Services (CAS): • Required by the user agency. • Existence of budget availability, as determined by the budget office of the entity or person acting. In these extremes the rule states as a condition sinequanom the need for service and budget availability, understanding the former as the lack of a service other than those set out in the Organization and Functions Manual in accordance with Table for Staffing of the entity.

While the second refers to the need to budget appropriation and availability of resources for payment of the service. It should be noted that in relation to the nature of non-autonomous function of the CAS area, has been lacking in those who are sincere in nature permeated in relation to others who are merely temporary. An example of this is the fact that in some sectors have been non-personal services for over 25 years doing work "time? which is contradictory since that time and the work continuedad determinants are staying in short hope this is the subject of a future modification to contract to provide stability to those who develop permamanentes functions. Added to this is undeniable that management manuals whether they Organization and Functions Manual, Rules of Organization and Functions, Work Rules, Table of Allocation of Staff and others must be completely honest, based on the principles of specialization and meritocracy. As for the procedure to be followed for the realization of a service in the Administrative Contracting Scheme (Recas) has established the following: 2.1 Preparatory Phase: This includes the requirement of the user agency or organizational unit, which includes a description of the service make and the minimum requirements and competencies to be met by the applicant and the description of the stages of the procedure, the justification of the need for recruitment and budget availability determined by the budget office or in lieu thereof the entity .

They are not enforceable requirements under procedures prior to the force of Legislative Decree No. 1057 and its regulations. 2.2 Notice: This includes the publication of the notice in the institutional portal on the Internet and in a prominent local public access or the headquarters of the organizing company, without prejudice to be used at the discretion of the organizing company, other means of information. The publication of the notice must be published and maintained from at least five working days before the start of the selection stage. 2.3 Selection: Includes an objective assessment of the applicant, related to the needs of the service. It should include curriculum and assessment at the discretion of the organizing company, the written examination and interview, among others deemed necessary according to the characteristics of the service area of ​​the call. In any case the assessment should be performed taking into account the requirements related to service needs and ensuring the principles of merit, ability and equal opportunities. The result of the evaluation are published through the same means used to publish the notice in the form of list in order of merit, which should contain the names of the applicants and the scores obtained by each of them.

We consider it a blunder to set as optional written assessment and personal interview, since it is with these evaluations (meritocracy criteria) with those who truly are selected fairly. 2.4 Subscription and registration of the contract: Includes the signing of the contract within a period not exceeding five working days from the day following the publication of the results. If the deadline does not subscribe to the selected contract for objective reasons attributable to him, you must declare selected to the person in the merit order immediately following to proceed with the signing of the respective contract within the same period, counted from of the respective notification. Failure to sign the contract by the same considerations, the organizing company selected may declare the person in the merit order immediately following or declare the process. The declaration of desert, is an imitation of the administrative act regulated by the Procurement Act and the regulations state, in consequence and in an analogous interpretation of that event be the entity through organic unit that performs the process Recruitment will be obliged to inform the user area on the reasons for the declaration of the desert, so that it coordinates the corrective measures, towards ensuring the provision of service.

It's worth noting that, once signed the contract, the agency has five business days to enter the administrative contract registration services of each entity and the spreadsheet regulated by Supreme Decree N º 018-2008-TR. Finally, in regard to this procedure, the regulation expressly provided that "The procedures for hiring people in the government contracting system of services that are initiated after the effective date of the regulations, subject only and exclusively to the scheme rules, contained in Legislative Decree No. 1057 and these regulations. They are not enforceable requirements under previous procedures or process covered by the rules governing hiring and procurement. 3. Of Duration: Article 5 of Decree provides that the administrative services contract is held to a fixed term and is renewable. The regulation also confirms that provision further states that the duration of the contract can not be greater than the period corresponding to the respective fiscal year in which recruitment is made, however, the contract may be extended or renewed as often consider the entity contractor according to their needs.

Each extension or renewal may not exceed the fiscal year. As we have stated, we believe that this term should be differentiated and instead must conform more to reality, must differentiate the functions of permanent nature temporary. It is necessary to note that the regulation, a hit, stipulates that the offices occupied by persons designated by resolution are not subject to the rules of contract duration, procedure, grounds for suspension or termination regulated, will be applicable laws and regulations regulating the matter. These are generally paid management positions by UNDP or specific encargaturas. 4. Content: While the Second Supplementary Provision Final Regulation Ministerial Resolution states that the Presidency of the Council of Ministers adopted the model of contract for services, which will be published in its institutional portal, its body of law establishes minimum guidelines need for its content. Therefore, in addition to its temporary nature, setting a deadline, within its content must be specified: maximum weekly hours .- That is, the number of hours of service, the same shall not exceed a maximum forty-eight hours of services per week.

Contracting entities must ensure strict compliance with this provision and take appropriate measures to that end, including the proportional reduction in compensation for breach of hours of weekly services agreed in the contract or compensation for physical rest services in overtime. While Article 6 of the Regulation gives the power to the state administration to reduce proportionately the compensation for breach of the agreed weekly hours of service or compensation for physical rest in service delivery on time was due to foresee the mechanism for the realization of the mandate given that generally the "interpreters? State provisions are on the tangents. The harsh reality is that Peru, in fact, employees of many companies have been working 10 to 12 hours at least and, in fact, employers only pay for 8 hours. In Peru, the Ministry of Labor, over 35% of the EAP recognizes work more than 60 hours per week and more than 50% admitted doing so over the current legal maximum 48 hours per week. However, the worst is that, according to the National Household Survey 2002, 33.4% of workers in Lima not only works over 60 hours, but it does an "average" of 71.7 hours per week.

Within clear criteria must ask ourselves Where would go for any discounts (in the nomenclature of the Rules "proportional reduction?) Made to staff under remarriage? Is it necessary for implementing the creation of a fund like CAFAE stimulus and is only applicable to those under this type of contract? Is this the opportunity to realize a proper and responsible administrative autonomy of the state bodies? On the other hand, care must be taken in order to delineate the mechanisms dimensional, since there are contractual work, which by their nature require the output of commission or other similar services involving the local output of work. At this point the operational plans of the institutions must go hand in hand with these devices so as not to incur an institutional conflict. It is also necessary to consider the nature of the extra charges and how to how to be become effective, especially if you still need to be clear that the compensation for length of service (CTS) is not within the scope of Recas, as stipulated in Article 1 of Legislative Decree No. 650, the CTS is a social benefit that has a dual role: the provision of contingencies that causes the cessation of work, promotion of worker and family.

There are also special rules for setting the remuneration of the CTS computable, these include the regularity of the principal pay compensation and inaccurate. The regularity of the remuneration refers to all remuneration received by the worker normally, even though their amounts may vary. However, additional compensation for variable or imprecise nature, become regular if the worker has received at least three months in any six. That is, if for example, for the deposit of the month of May, overtime has received at least three of the previous six months (December to April). Also unclear is the compensation which may be either primary or complementary nature. According to the aforementioned, overtime compensation are complementary in nature a variable or inaccurate are eligible for Compensation for Time Service if they are regular. Finally, in a responsible management is necessary to determine under what mechanisms which could offset left of working hours by legal mandate, usually declared as holidays, and so to fulfill weekly hours agreed upon, we believe at this end that the administration can determine these mechanisms without falling into abuse, taking to the present case the same measures for all workers within the organization.

Contract modification .- The entities, duly justified by objective reasons, can change the place, time and mode of service delivery, without involving the holding of a new contract. As can be seen, can not vary the amount of the remuneration agreed. Although at this point we believe there is a gap when remarriage special legal body could not vary the amount of compensation as provided in the Rules of TUO Act of the State Procurement (still in force today DS N º 084-2004-PCM), according to increase or decrease of contractual duties, especially if explicitly defined the requirements for holding these contracts. Physical rest .- The legislature, with the utmost care of the nomenclature used in the definition of this legal body uses the concept of "physical rest? for "holiday break?, this for obvious reasons, the generation of labor rights issues that we discuss later. Remarriage physical rest conceptualized as the benefit enjoyed by non-self who serves in the form of contract services, which is not to provide services for a continuous period of 15 calendar days for every completed year of service, receiving the full of the consideration.

This benefit is acquired by years of service in the state. The renewal or extension does not interrupt service time accumulated. It's worth noting that according to his precepts, has further established that when the contract is concluded after years of service without having given effect to the respective physical rest, the employee receives the payment for the physical rest, something like a "vacation truncated ?. It's worth noting that just as the Legislative Decree regulates the administrative career at the end of the holiday period, Recas law states that the timing of physical rest is determined by the parties. In the absence of agreement determined by the contracting entity. Contributory membership of the scheme ESSALUD .- The standard under review explicitly states that contracts must realize Recas regarding contributory scheme ESSALUD as follows: • People who provide services in the form of contract services are regular members of the contributory scheme of social security in health, in accordance with the provisions of Article 3 of Law No. 26790 ¬-Law for the Modernization of Health Social Security and its regulations and amendments.

Shall also include the title referred to the Act. In this regard, it is timely to note that the Law No. 26790 as amended by Supplementary Provision of Law No. 27117 provides that the contributory scheme are insured for Social Security in Health, regular members and their beneficiaries or power. This law states that regular members are: - Active workers who work as a dependent or as members of worker cooperatives. - Pensioners receiving retirement pension, disability and survival. - Self-employed workers that are incorporated by mandate of a special law. All are affiliated persons not included in the form of secured power in the Social Health Insurance (ESSALUD) or entity providing health of your choice. On the other hand, the standard title insurer establishes that the spouse or cohabitant to those referred to in Article 326 of the Civil Code as well as minor children or incapacitated adults in a total and permanent work, provided they are not mandatory membership. Coverage of children begins at conception, in the care of the pregnant mother.

The Contributory Scheme of the Social Health Security is mandatory for regular members and others to bring the law and is authorized to conduct, directly or indirectly, social outreach programs for the care of uninsured poor. In the case of financial benefits whose amount is determined according to the income received by the insured, the calculation is made based on the consideration received, not to exceed the taxable maximum laid down in Article 6.4 of Legislative Decree No. 1057; is say to these effects, the maximum contribution base is the equivalent of 30% of the UIT in force in the exercise for each insured. • The services are performed as required by Article 9 of Law No. 26970 and its implementing regulations and amendments. To the right coverage for benefits, the regular member and their beneficiaries must meet the criteria in the Act. It should be noted that the above rule states that Social Security benefits are determined in Health regulations, depending on the type of membership and could include the following: a) providing preventive, promotive and health care.

b) Benefits of welfare and social development. c) Cash benefits for temporary disability benefits and maternity. d) Benefits for burial. The services are offered through the services of the IPSS or other entities and in no case may have coverage below Minimum Care Plan is established in the regulations. The regulations establish the requirements, conditions and procedures. The monthly contribution for the consideration stated in the contract monthly administrative services is borne by the contracting entity, which must declare and pay in the month following the accrual of the consideration. The calculation of the monthly contributions are fixed at a maximum tax of 30% of the current tax unit, taking into account the minimum taxable income under Article 6 of Law No. 26790 in force. • The registration, declaration, payment, accreditation and other persons providing services in the form of contract services are provided by the National Superintendency of Tax Administration and are conducted in accordance with the provisions of Law No. 27334 and its implementing regulations. This rule provides that the National Superintendency of Tax Administration (SUNAT) perform the functions outlined above with respect to contributions to Social Health Insurance (ESSALUD) and Office (ONP), which refers to Rule II of Title Preliminary Consolidated Text of the Tax Code, approved by Supreme Decree No. 135-99-EF.

SUNAT may also exercise administrative powers over other non-tax obligations ESSALUD and ONP, according to what is established in the corresponding inter-agency agreements. Membership to the pension scheme .- This aspect is optional. In effect the regulations have established that for those at the date of entry into force of Legislative Decree No. 1057, are serving for the State and their contracts are replaced by an administrative contract services. In these cases should proceed as follows: a. Those who are not members of a pension system and their willingness to join, should decide their affiliation to any of them as provided in the regulations. The entity to withhold contributions to the pension system as appropriate. b. Those who are members of a pension system but to date have suspended their payments or were providing voluntary amount may remain in that situation or choose to make as a regular member for which it should communicate that fact by statements affidavit, the entity which retention proceeds to distribute to the contractor for proof of retention record the amount withheld.

Membership in a pension scheme is compulsory for people who, not being found by the above, are employed under the regime of Legislative Decree No. 1057, as long as it is not of current pension entitlements or people who are already affiliated to a regime. Those who are affiliated to a scheme should communicate that fact, by affidavit, to the entity with which it comes to withhold delivered to the Contractor for holding a record that records the amount withheld.





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III.

This legal doctrine in an acquired right. The author Marcial Rubio seeks to solve the problem of application of the rules over time, using the concepts of retroactivity, and retroactivity ultractividad, placing them in its connotation of temporary application: immediate application ultractiva retroactive. In this line, defines entitlements as those who have entered our domain, which are part of it, and which they can not deprive him of whom we have, while for the theory of faits accomplis, collects Mario Alzamora definition, by stating that the facts met during the term of the former is governed by this rule, the effect of age after the new one. In this regard, the reform of Article 103 of the Constitution of the State, aims to include in its text the provision of Article III of the Preliminary Title of the current Civil Code, which in the opinion of authors such as Marcial Rubio and Javier Neves, as well as the Constitutional Court, includes the theory of the accomplished facts, concluding the latter, which is that the system prevailing in our legal system. 1. The alleged rights constitutionalization met: According to Enrique Bernales Ballesteros, in the current debate has been some confusion on the issue of fundamental rights and the relationship they hold with the acquired rights and the accomplished facts.

It should offer some reflections about clarifying the matter and will eventually help the legislature to clarify the distinctions between each of the concepts involved in the constitutional reform debate. In this regard, the doctrine of human rights "recognition? the historical, political and legal means of which the modern state to organize as a direct result of human freedom and the will of the people competing to proclaim its sovereignty, admits to being an established entity, contingent, dependent on the absolute never loved human freely and voluntarily have agreed to create the State as an entity of order, safety, security and services. In the previous perspective, is the human being who claimed to be inherent in their own individuality and dignity of rational life, liberty, equality before the law, security and respect for these qualities in their deliberate integration into a collective and society is. Needless to say that equality before the law is not consistent or accept discrimination, being rather a substantial error different measures to legislate for those in the same situation. This is the doctrine of Human Rights, which appears as the basis of the Universal Declaration of the United Nations (December 10, 1948) to which Peru is a party.

This situation in which the human being is prior and superior to the state, is the foundation of all those rights are universal, indivisible and interdependent born with the person himself and not the state. This theory, which has led to a progressive legal positivization Human Rights, however above the finalization process after the second post-World War, for your immediate reference back to the revolutionary processes of the late eighteenth century on. Peru has adhered to this doctrine since independence and hence the superiority of human rights are part of what is called hard core or historical constitution of our country. The State, unless it becomes a totalitarian entity, does not create these fundamental rights, it should simply be recognized by the constitution for them. Thus, a chapter of the Constitution are called Fundamental Rights and other economic, political, etc.. It should be pointed out that from the point of view of human rights theory, there are no hierarchical relationships between them and other rights. All human rights contribute to the same end, which is the dignity of the human person and that's why they are indivisible and interdependent.