Ratified treaties¹

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).

² Paragraph 12 of the decision.

³ Paragraph 12 of the decision.

⁴ Paragraph 13 of the decision.

⁵ Paragraphs 17-18 of the decision.