Supreme Court of Justice of the Republic of Peru, Constitutional and Social Law Chamber, Peruvian Institute of Social Security (Seguro Social de Salud, ESSALUD) re. cassation appeal, 11 May 2011, Case No. 1001-2010
Constitution of Peru
The list of rights set out in this chapter does not exclude any others guaranteed by the Constitution, those of an analogous nature or based on the dignity of man, the principles of the sovereignty of the people, the democratic State of law and the republican form of government.
Treaties ratified by Peru and in force form part of domestic law.
Treaties must be adopted by Congress before their ratification by the President of the Republic, whenever they deal with the following subjects: 1. Human rights; 2. The nation’s sovereignty, dominion or territorial integrity; 3. National defence; 4. Financial obligations of the Government.
Article 57, paragraph 2
Whenever a treaty affects constitutional provisions, it must be approved through the same procedure governing constitutional reform before being ratified by the President of the Republic.
Final transitional provision No. 4
Provisions concerning the rights and freedoms recognized by the Constitution are interpreted in accordance with the Universal Declaration of Human Rights and with treaties and international agreements dealing with the same issues and ratified by Peru.
Labour Procedure Law (No. 29497 of 2010)
Supplementary provision n°10
In accordance with the provisions of the fourth final and transitional provision of the Political Constitution of Peru, individual and collective labour rights shall be interpreted in accordance with the Universal Declaration of Human Rights and the relevant international treaties and agreements ratified by Peru, in addition to the consultation of the pronouncements of the supervisory bodies of the International Labour Organization (ILO) and the opinions or decisions adopted by international courts constituted according to treaties to which Peru is party.
Hours of work
Use of international law as a guide for interpreting domestic law
Maximum duration of the working day/ Exceptions and exclusions/ Discontinuous work/ Overtime/ Use of international law as a guide for interpreting domestic law
Following the action taken by an ambulance driver, in the ruling under appeal it was decided that ambulance drivers are considered healthcare workers, meaning that they form part of the staff whose daily working hours are limited to 8 hours a day and 48 hours a week. On this basis, the Court ruled that overtime hours were to be paid. The appellant, the Peruvian Institute of Social Security, ESSALUD maintained that ambulance drivers are not healthcare staff and it should therefore be considered that they carry out intermittent work with waiting periods of inactivity.
The Court cited the restrictions established in national and international standards regarding the maximum duration of the working day, as well as the exceptions set out in those standards, concluding that the work of an ambulance driver could only be classified as intermittent, and as such, it is excluded from that maximum duration of the working day.
In its conclusion the Court stated: “fundamental rights such as the right concerning the maximum working day set forth in article 25 of the Peruvian Political Constitution must be interpreted in line with the Universal Declaration of Human Rights, treaties and agreements related to human rights ratified by Peru and decisions adopted by international courts related to human rights constituted according to the treaties to which Peru is party, in accordance with the Fourth Final and Transitional Provision of the Political Constitution”.2
“Within this framework of interpretation”, the Court observed that Article 2 of the ILO Hours of Work (Industry) Convention, 1919 (No. 1) sets forth that “[t]he working hours of persons employed in any public or private industrial undertaking or in any branch thereof […] shall not exceed eight in the day and forty-eight in the week”. Notwithstanding, it also reiterated that the same Convention “in article 6 1) establishes that ‘1. Regulations made by public authority shall determine for industrial undertakings: (a) the permanent exceptions that may be allowed in preparatory or complementary work which must necessarily be carried on outside the limits laid down for the general working of an establishment, or for certain classes of workers whose work is essentially intermittent’.” 3
Thus, the Court declared that ILO Convention No. 1 is the international standard “within which the law on hours of work should be interpreted, allowing the national legislator to establish exceptions concerning workers who are not subject to the maximum working day, which should evidently be carried out within reasonable parameters in agreement with the specific nature and conditions of each case and which merit different treatment with respect to other regular workers”.4 In the case of Peru, this is encompassed by article 5 of Legislative Decree No. 854, which establishes that workers carrying out intermittent work, security or custodial work are not subject to the maximum working day.
On these grounds, the Court overturned the sentence under appeal since it considered it to be without foundation, and reversed the original decision, rejecting the worker’s claim that they should be paid overtime.
The ruling was handed down with four votes in favour and one against. The vote proposed to reject the appeal, on the grounds – among others – that it considered that “the aforementioned judicial authorities [...] have ruled that the work carried out by the actor in their role as emergency ambulance driver was not intermittent; rather, it was active employment […] for more than 12 hours per day […] taking into account that the work carried out by the actor is not subject to a pre-established duration: on the contrary, since its nature is unpredictable and urgent due to its relation with patients’ lives and health, it involves a permanent and active state of alert and availability, with no possibility of the existence of periods of inactivity in any meaningful sense.”5
1 ILO Hours of Work (Industry) Convention, 1919 (No. 1); ILO Hours of Work and Rest Periods (Road Transport) Convention, 1939 (No. 67); ILO Convention Hours of Work and Rest Periods (Road Transport) Convention, 1979 (No. 153).