30
Similarly, there are differences with regard to other standards used to calculate the
payment.100
103. On the other hand, the expert report presented by the representative calculates,
until 2010, the amount due for the ommission to increase based on the amount derived
from the application of the last scale of the salary of the victims. In order to justify the
end-date for calculation purposes, the calculation is based on a report issued by a
consultant of the Labor Ministry in the context of the friendly settlement proceeding
carried out in this case (supra para. 95). Among the reports’ various statements, it
indicates that:
“the fact that the system was eliminated in November 1992 by Law Decree 25876 does not
mean that the raises granted while it was in force cease to form part of the workers’
remuneration; the elimination of the system only means that the updating of the
remunerations would cease to happen as of that time. Therefore, the sums owed for the
application of the salary scale system during the periods in which it was in force form part of
the remuneration of the functionaries and must to this day be included in the base calculation
of work compensation.“101
104. Also, the expert witness report from the State takes into account that on October
8, 1993, SEDAPAL102 “approved, among other things, the Basic Remuneration Structure
for levels I through VI - that is, functionary positions - stipulating its implementation and
payment starting in August 1993. This structure increase[d] the remuneration of workers
not subject to collective bargaining, absorbing all the prior raises from as far back as
July 1993.”103 In this regard, the expert witness report indicated that:
the expert opinion of the State and of the representatives regarding Mr. Abrill Alosilla, it is noted that in both
the basis for the calculation regarding the amount not increased is of 214,90. Moreover, regarding the basis of
the calculation for the improper discount refund, the values in both tables correspond to 92,00. However, in
the expert opinion of the State, the amount for the improper discount refund is larger until the month of March
1994, which totals 1524,62. In fact, in the representatives’ expert opinion the amount is less, giving that
adding * and * is a total of 1399,64 (refunds of March and April 1993 and October 1993 to March 1994). Cf.
Expert Opinion of Mr. Félix Daniel Aquije Soler, supra note 29, folio 2632 and Expert report of Mrs. Lily Isabel
Albornoz Castro, supra note 40, folio 1954.
100
The expert reports differed on certain criteria that must be used to pay, for example, the
reimbursement of the deductions carried out improperly by the company. Although it is clear that the major
difference between the two expert witness reports submitted by the parties centers on the date on which the
calculation of the debt to the victims must conclude, the Court observes that there are other technical
differences that result in amounts that differ on some points. Effectively, there are differences depending on
the way the percentage of the scales is calculated, as with the State’s expert witness report interest is added
for benefits that are not taken into account in the expert witness report of the representative. The expert
witness report of the State calculates interest for the following items: i) work established by Decree Law.
25920; ii) health reimbursements by EsSALUD; and, iii) compensation refunds for time of services (CTS).
Regarding this last criterion, it should be noted that according to Article 21 of the Law on CTS, “employers
make a deposit in the months of May and November of every year, as many twelfths of the received
remuneration of the worker in the months of April and October respectively, as complete worked months”.
Likewise, the Court notes that the Emergency Decree 127-2000 established that in the temporal regime of
monthly deposits of CTS as of [January 1, 2001], which was extended succesively until [October 31, 2004].
According to Article 2 of the provision, the deposit of monthly CTS is determined applying the 8.33% of the
monthly remuneration” Cf. Expert Opinion of Mr. Félix Daniel Aquije Soler, supra note 29, folio 2590. On the
other hand, the expert opinion presented by the representatives did not explain on what the name or the
criterion given to each of the boxes used in the table of refunds entails. On the other hand, in the calculation
of the value of refunds for the improper discount, the values and the dates do not match. These differences
between the expert witness reports have not been subject to specific pleadings from the parties, for which
reason the Tribunal does not find it proper to rule on them.
101
Official Letter No. 1-2005MTPE/ATAD of January 7, 2005, supra note 44, folios 1884 and 1885.
102
Agreement of the Directory of SEDAPAL No. 168-026-93 of October 8, 1993. Cf. Expert Opinion of Mr.
Félix Daniel Aquije Soler, supra note 29, folio 2579.
103
Cf. Expert Opinion of Mr. Félix Daniel Aquije Soler, supra note 29, folio 2579.