Huatuco precedent is applicable to CAS workers | The law

The member judges of the Second and Fourth Chambers of Transitory Constitutional and Social Law of the Supreme Court agreed to establish that the binding precedent of the Constitutional Court, relapsed in the File No. 5057-2013-PA/ TC JUNÍNprecedent ”Huatuco”, applies to workers subject to the labor regime of Legislative Decree No. 1057, which regulates the special regime of administrative contracting of services (CAS).

What does the “Huatuco” precedent consist of?

In the sentence passed on the File No. 05057-2013-PA/TCIn the “Huatuco” case, the Constitutional Court established, as a binding precedent, that, in cases of denaturation of the temporary or civil employment contract, the judges could not order the indefinite replacement of workers if they did not comply with the following requirements: 1) have entered the Public Administration through a public competition of merits, 2) for a budgeted place, and 3) for a vacancy of indefinite duration.

Also read: Read here the IX Supreme Labor Jurisdictional Plenary

Why were CAS workers excluded?

The exclusion of the application of the Huatuco precedent to the CAS workers occurred in a context where the CAS contracts had a specific validity, that is, they were temporary, and the termination of the aforementioned contract could be carried out unilaterally by the contracting entity without that this would lead to a replacement.

However, since these assumptions have been modified, and there is no rule that expressly excludes the CAS workers from the scope of a replacement, it would be appropriate to apply the Huatuco precedent to the CAS workers, within the parameters established in ground 116 of the Judgment of the Plenary Session No. 979/2021 of the Constitutional Court, on the partial unconstitutionality of Law No. 31131, File No. 00013-2021-PI/TC.

What was agreed at the IX Supreme Jurisdictional Plenary on Labor Matters?

In agreement 2.1 of the aforementioned Plenary, it was established that the “Huatuco” precedent applies to workers subject to the CAS labor regime in the following cases:

a) Workers who sign a CAS contract from the entry into force of Law No. 31131, that is, from March 10, 2021.

b) Workers who had a CAS contract as of March 10, 2021, and had not entered a budgeted and vacant position of indefinite duration through a public merit contest.

c) CAS workers who have been hired directly without public competition of merits.

In what cases does it not apply?

Similarly, in agreement 2.2 of the aforementioned Plenary, it was established that the “Huatuco” precedent does not apply to workers subject to the CAS labor regime in the following cases:

a) The CAS worker demands the nullity of the administrative act or material act that caused his dismissal, seeking his replacement in a CAS of indefinite time, provided that it has the following characteristics:

i. The CAS worker entered through public competition for a permanent position, and

ii. The tasks performed corresponded to the main activity of the entity.

Also read: Find out here the agreements of the IX Supreme Labor Jurisdictional Plenary

In the case of the replacement of a CAS worker with tasks of transitory need or substitution, it can only be ordered within the term of the corresponding contract, validly concluding at the conclusion of the same.

Likewise, the dismissal of a CAS worker without disciplinary cause or related to the worker’s capacity, will give the right to reinstatement in employment, which will materialize in the same regime in which he was originally hired.

b) The worker having a current contractual relationship demands the declaration of the existence of an employment relationship for an indefinite period of time due to primacy of reality (service location contracts) and/or the distortion of modal contracts and/or CAS contracts.

c) The defendant is one of the public institutions expressly excluded from Law No. 30057, Civil Service Law.

d) In the case of workers at the service of State companies by express mention of article 40 of the Political Constitution of Peru and, therefore, expressly excluded from Law No. 30057.

e) The worker is included in the labor regime of Legislative Decree No. 276, or the contracted worker invokes the application of Law No. 24041.

f) These are cases of intermediation and fraudulent outsourcing.

g) In the case of nullity of dismissal provided for in article 29 of the TUO of Legislative Decree No. 728, Labor Productivity and Competitiveness Law.