AUTHORS:
Willman Meléndez - Professor of Labor Law at the PUCP
Claudia Saldaña - Adjunct Professor of Labor Law at the PUCP
On February 5 of this year, two important rules have been published for the regulation of vacation rest for workers. Thus, Legislative Decree No. 1405, Legislative Decree that establishes regulations so that the enjoyment of paid vacation rest favors the reconciliation of work and family life, which was issued in September last year, is already regulated through Supreme Decree No. 013-2019-PCM, in the case of the public sector, and Supreme Decree No. 002-2019-TR, for the private sector.
Before going into detail on the recently issued regulations, it is necessary to indicate what Legislative Decree No. 1405 refers to. This norm initially regulates the paid vacation leave of public entity employees. However, in its only complementary amending provision, it states that, in application of the constitutional principle of equality before the law, Articles 10, 17 and 19 of Legislative Decree No. 713 are amended for workers of the private sector labor regime. This makes it possible to equalize the situation of workers in relation to their vacations regardless of the regime to which they belong.
Both public and private sector workers have 30 calendar days of vacation leave for each full year of service. However, this is conditioned to the following vacation record:
- Workers with an ordinary workday of 6 days a week must have worked at least 260 days.
- Workers with an ordinary workday of 5 days a week must have worked at least 210 days.
Likewise, in both cases, the possibility of dividing vacation time and requesting an advance of vacation time is indicated. The development of both points can be found in the Regulations contained in the previously mentioned Supreme Decrees.
About the Regulations:
With respect to the public sector, it is important to point out that the regulation applies to all government employees, under any labor, special or career hiring regime, including the Corps of Public Managers, unless they are regulated by more favorable rules. Likewise, the following points are covered:
- It is established that an ordinary working day shall be considered to be 8 hours a day or 48 hours a week at the most, and that the ordinary half working day shall be less than or equal to 4 hours a day.
- In order to compute the vacation record, the effective working days are composed of the following: the ordinary working day, the hours of rest with which overtime is compensated (provided they have been deducted from the ordinary working day), absences due to common illness, work accidents or occupational disease provided they do not exceed 60 days per year, pre- and post-natal rest, paternity leave, breastfeeding leave, hours compensated for teaching leave (deducted from the regular workday), union leave and leave, vacation period corresponding to the previous year, days of legal strike, absences authorized by law, individual or collective agreement or decision of the entity.
- Regarding the timing of the rest, it is regulated that it shall be established by mutual agreement between the employee and the entity. In the absence of agreement, the entity decides according to its procedure and taking into account principles such as reasonableness and the needs of the service.
The beginning of the vacation break may be even on a weekly rest day, holiday or non-working day at the work center.
- Regarding the division of the vacation break, the employee shall enjoy his/her vacation break in periods of no less than 7 calendar days and shall have 7 working days to divide it in periods of no less than half a day of ordinary service. The latter only applies to those who work under the modality of ordinary working hours.
- In relation to the vacation advance, the employee may request it before the end of the year and the vacation record, provided that the requested days of rest have been generated in proportion to the number of days to be used in the year.
In the case of the private sector, Supreme Decree No. 002-2019-TR indicates that this regulation will be applicable to private sector workers but special labor regimes will be governed by their own rules. In addition, this regulation can be summarized as follows:
- The vacation break shall be 30 calendar days and may include weekly rest days, holidays, non-working days and other events of suspension of work that occur during the respective vacation period, unless something more favorable is provided for.
- It may also be agreed to advance rest days on account of the vacation period to be generated in the future and may be greater than the number of days already generated in proportion to the number of days worked.
- The timing of the vacation break and how it is divided shall be determined by mutual agreement between the employer and the employee. The employer cannot unilaterally decide the division.
At least 15 calendar days are taken uninterrupted or distributed in two periods of at least 7 and 8 days. The remaining days may be taken in periods of at least 1 day. The order of leave is agreed by the parties.
- The 30 calendar days of vacation may be reduced to 15 days provided that they are compensated with 15 days of remuneration. This agreement is only valid for the period that can be taken in installments of even less than 7 calendar days.
Some comments:
Since these are regulations, they detail what was previously regulated in a norm, so there are no changes but only a development of what was stipulated in Legislative Decree No. 1405. Thus, what was previously listed allows the application of the rule that modified the vacation regime for workers. With the issuance of the regulations, points such as the computation of the vacation record, the fractioning and the advancement of the vacation rest are clear.
In practice, the division of vacations already occurred in the workplaces; however, the rule was that the vacation rest should be taken in periods of at least 7 continuous days. With the change in the regulations, it is possible for workers to agree that at least 15 calendar days (private sector) or 7 working days (public sector) of the 30 calendar days that correspond to them, be enjoyed in periods of even 1 day or half a day, respectively. As can be seen, although there is a restriction indicating that certain periods must be taken uninterruptedly, workers are also allowed to propose alternatives so that they can enjoy the vacation period in the way that is most convenient for them.
An issue that had been questioned was the days included in the vacation rest. This is due to the fact that it is common practice to choose days close to holidays or non-working days as vacation days. This caused that, in some cases, the vacation periods were understood to be longer than the 30 calendar days indicated in the regulation. With the regulations, it has been clarified that vacation leave may include weekly rest days, holidays or non-working days at the work center.
Although the opportunity of rest is agreed between the employer and the employee, in the absence of agreement, it is the employer who decides. This could lead to the fact that periods that were not counted as vacation are now part of it. Thus, if workers used to assume that holidays such as Easter or national holidays and those contained in Article 6 of Legislative Decree No. 713 were not counted as part of the vacation period, the regulation seems to imply that considering them as vacation rest would be valid. In this way, the number of days per year corresponding to vacation would be 30 calendar days. However, it must be taken into account that there is the possibility that the employee may agree with his employer on a date different from those indicated.
Regarding the advance of vacation days, there is a great difference in the regulation of private and public sector workers. For the latter, it is necessary that the vacation record has been generated proportionally to the days requested as rest; however, for the private sector, it has been indicated that the advance of days may be greater than the number of days generated. This allows the employee to have access to the vacation days he/she generates, without having to render a year of services before requesting a vacation period.
Regarding the private sector, it is important to point out that if the employee stops working before completing the corresponding vacation record, the advanced rest days will be compensated from the days that make up the truncated vacation. If this is not possible, the employee is not obliged to pay or compensate in any other way.
Conclusion
This new regulation allows workers to split their vacation period, as well as to request an advance of the vacation days to which they would be entitled. Employers and employees must agree on the division, although the employer may have to decide on the timing of the vacation.