-85g)
as regards the collective agreements on compensation benefits, the
judgment is at the enforcement stage. The Primer Juzgado Especializado de
Lima (First Specialized Court of Lima) has issued orders related to
enforcement. Pursuant to applicable law, the monetary obligations which are to
be discharged from the budget of a public agency must be scheduled in
advance in order to provide sufficient funds in the forthcoming budget periods.
The Municipalidad de Lima Metropolitana (Municipality of Metropolitan Lima)
has already made the necessary provisions;
h)
among the different decisions indiscriminately included in the
application, there are some that are but declaratory in nature, which do not
contain any specific order, do not refer to any dismissal, do not identify any
person whatsoever and therefore are not subject to compliance or noncompliance. The analysis of the decisions of July 27 and November 16, 1998
and other decisions handed down by the Sala Corporativa Transitoria de
Derecho Público (Corporate Provisional Public Law Chamber) “fall within this
category;” consequently, the State requests the court that the decisions of July
27 and November 16, 1998 be excluded because they do not contain any
order;
i)
as regards the ESMLL case, the court proceeding is still pending and is
now at the enforcement stage. The identification by name of the persons
included in the scope of the decision of the Tribunal Constitucional
(Constitutional Court) has delayed its completion. The decisions that put an
end to the dispute concluded that: (i) the deposit in court has the same effect
as payment; (ii) duly notified deposits in court that have not been challenged
are valid and have the same effect; and (iii) those workers that have not been
notified or that have shown that they were unable to file an objection by
reason of a force majeure event are deemed not to have collected their
benefits. The No. of persons in this situation amounts to 56;
j)
reinstatement is factually and legally impossible insofar as ESMLL has
ceased to exist. ESMLL workers were not part of the Municipalidad de Lima
Metropolitana (Municipality of Metropolitan Lima) for ESMLL was a separate
and independent legal entity; and naturally, its workers were subject to labor
terms and conditions different from those of the municipal workers.
Consequently, it is factually impossible to reinstate employees to an inexistent
corporation and it is legally impossible to reinstate them to the Municipality,
which was not their employer;
k)
Peruvian tax law strictly prohibits engaging a worker unless there is a
previously established and budgeted vacancy, imposing administrative and
criminal liability on the competent officer for violation thereof. Such prohibition
is applicable even to the enforcement of a court order, in which case the
reinstatement of the worker is suspended until the vacancy and budgetary
item become available. Furthermore, there are statutes forbidding to create
new positions. “Consequently, the reinstatement of a worker is subject to the
possibility that a vacancy is self-generated by an active worker leaving his or
her job, for whatever reason.” Austerity regulations are not designed to
promote non-compliance with court orders; “rather, they result from the
country’s economic situation and the chaotic condition of the public
administration in most government agencies;”
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