TC declared unfounded the claim of unconstitutionality against the perfect suspension of work

He Constitutional Court (TC) declared unfounded a claim of unconstitutionality referring to some articles of DU 038-2020, which provides for the perfect suspension of work only at the discretion of the employer.

Was the Cajamarca Bar Association the entity that filed the lawsuit (Exp. No. 00011-2021-PI/TC) against this measure implemented in the pandemic, ensuring that the principles of freedom of association and collective bargaining are violated, as well as the rights to political participation, defense, pension, work and freedom of contract contemplated in the Constitution. They also refer to international labor conventions.

Nevertheless, The TC defined that the perfect suspension could only be implemented after exhausting other less burdensome mechanisms —such as those mentioned above—, so the DU guidelines do not make it unconstitutional.

On the other hand, the magistrates declared that the questioned norms are not discriminatory nor do they limit the rights of unionized workers, because it was expected that the union leaders would maintain the employment relationship during the suspension.

“Regarding the alleged violation of the right to defense, he pointed out that the perfect suspension of work procedure is not a judicial process or an administrative procedure in which employers and workers confront each other and present arguments before an administrative court,” they added.

In short, the Constitutional Court maintains that the rights to freedom of contract or the right to work are not being violated, since access to a position is not affected nor are dismissals without just cause allowed; on the contrary, it sought to prevent employers from resorting to collective layoffs.

And, regarding the freezing of remunerations, they pointed out that since it was a temporary measure, the employer was released from paying when the obligation to work ceased.