16
61.
With regard to the foregoing, the Court observes that the second and third
decrees broadened the conditions on which the suppression of the salary adjustment
systems was based. Effectively, the purpose of the first decree was, among others, to
put an end to the salary scale system. To do so, it established that “pacts or collective
bargaining agreements can not contain “automatic remuneration adjustment systems
linked to changes in price indexes” were not allowed. However, the second legal decree,
No. 25541, established: i) that the prior prohibition would extend to automatic
adjustment systems that had been set up through “norms”; ii) that salary systems of a
“similar nature” would not be permitted; and iii) that those additions would take effect
as of the date of Legislative Decree No. 757, that is, December 13, 1991. The Court also
observes that the purpose of Law Decree No. 25876, the third decree, was to add the
provision that the law was also applicable to systems originating in “judicial or
administrative rulings,” as well as to reiterate that these kinds of systems were banned
from the date on which the first decree entered into force, that is, December 13, 1991.
62.
The representative and the State indicated that the salary scale system in
SEDAPAL could be repealed only as of the entry into force of the last rule (Decree No.
25876), which is to say on November 26, 1992. Various pieces of evidence found in the
case file establish that the decree cannot have taken effect as of a date prior to its
publication.44 Taking into account the coinciding positions of the parties and the available
evidence, the Tribunal views as established fact that the date as of which the repeal of
the scale system with regard to the alleged victims had to have taken effect was
November 26, 1992, the date on which Decree Law No. 25876 entered into force (supra
para. 60).
1.3.
Deductions and lack of increased remunerations as a result of the retroactive
application of the law that repealed the salary scale system
63.
SEDAPAL used December 13, 1991, as the date for abolishing the salary scales,
not November 26, 1992. SEDAPAL’s application of the above-cited decrees had the
following effects:
a) as of the month of December 199245 SEDAPAL lowered the monthly
remuneration of the functionaries, deducting the portion that they had been
receiving due to the raises;46
44
Pursuant to the Report of a technical advisor of the Ministry of Labor who analyzed the present case in
the framework of the friendly settlment attempted by the parties, “Article III of the Preliminary Title of the
Civil Code, of supplementary application to the code, picks up on the theory of the carried out facts, on
establishing that the law applies to the consequences of existing juridical relations and situations, and Article
187 of the 1979 Constitution indicated that no law has retroactive authority except in criminal, labor or tax law
when it is beneficial to the prisoner, worker or tax payer, respectively. This was not the case, for which reason
this decree could not have any effect on a date prior to its publication.”Official Letter No. 1-2005-MTPE-ATAD
of January 7, 2005, addressed to the Vice-minister of the Ministry of Labor and and Work Promotions (case file
of annexes to the answer to the application, tome I, annex 5, folios 2480 to 2481). Moreover, the expert
witness of the representative noted that “[t]he fact of the increase offered during its time in force, stopped
forming part of the remuneration of the workers; the elimination of the system only meant that the updating of
the remunerations stopped from that moment on.” Expert report of Mrs. Lily Isabel Albornoz Castro, supra note
40, folio 1625. In the same sense, the expert witness presented by the State establizhed that “the system of
salary scalres was eliminated by [the Decree Law 25876] as of the after its publication; that is, since
[November] 26, [1992.] Therefore, the system of salary scales established by SEDAPAL was in force until
[November] 24, [1992.] Expert Opinion of Mr. Félix Daniel Aquije Soler, supra note 29, folio 2574.
45
In this respect, the Commission, the representative and the State agreed that this date was the
moment when the Legislative Decrees were implemented (case file on the merits, tome I, folios 12, 106 and
154). Likewise, the two expert reports presented by the representative and the State agreed on this date.
Expert witness report presented by Felix Daniel Aquije Soler, supra note 29, folios 2568 to 2668 and Expert
report of Mrs. Lily Isabel Albornoz Castro, supra note 40, folios 1622 to 1627.
46
In this way the company applied “the ‘salary scale’ system with the base remuneration applying to
December 1991 at S/. 190.00[, and] not to January 1992 at S/. 220.00, based on the fact that in keeping with