BY: LAWYER. JAVIER H. ASCUÑA CHAVERA (LABOR CONSULTANT) [CEL. 953996711]
This dilemma generally arises when unions are exercising their legitimate right to strike. In principle, when the union communicates the decision to strike, according to the law, it must also accompany the list of workers, who must work according to the work center emergency work.
However, said formal compliance with accompanying the payroll, apparently means the automatic approval of its content by the Labor Authority, but what would happen with respect to the payroll of workers presented by the company.
In this case, a divergence procedure is produced, which must be resolved by the labor authority, in this sense, in the case of divergence, regarding the communication of the number and occupation of the workers necessary for the maintenance of essential services. during the strike, despite the fact that the regulation establishes that it is an automatic approval procedure, in accordance with the provisions of the Single Ordered Text of administrative procedures of the Ministry of Labor and Employment Promotion, in the procedure called communication of the number and occupation of workers necessary for the maintenance of essential services during the strike, a criterion that is also contained by the Constitutional Court in file No. 02211-2009-PA/TC.
But in practice or in reality, there is the content of report 81-2016-MTPE/2/14.1. before a consultation carried out by a union of workers, to the labor authority; where it indicates that when a discrepancy in the list of essential personnel is pending resolution and that mechanisms must be investigated and used to verify what is proposed by the parties, which would require a reasonable amount of time. To temporarily resolve this divergence and in order not to harm the development of the workers’ strike and the operation of the company, the same criteria adopted in a previous divergence must be temporarily considered, that is, consider the same personnel that was established. as essential personnel in the previous strike.
In the present case that is the subject of this article, it has been proven that the previous divergence process considered two hundred and eighty-three workers where the worker was considered, as requested by the company in this proceeding, in this sense, at the time of initiating the strike. Therefore, the worker was validly considered essential personnel, having the obligation to work in the event of work stoppage or strike, for which reason not having done so and having been absent from his job position would have constituted a possible misdemeanor. of sanction, for which he was sanctioned, as provided in the recent Labor Cassation No. 28-2019, Arequipa.