According to the criteria of
This Thursday, the Ministry of Labor (MTPE) notified Cineplex (Cineplanet) the resolution that confirms –as a last resort– the disapproval of the request that it presented in April of last year to benefit from the perfect suspension of work which comprised about 2,160 workers.
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It is a resolution that exhausts administrative procedures and obliges the chain of cinemas to pay the employees involved the salaries of the months in which the measure was applied.
The Labor Authority confirmed that there is no evidence that the company has entered into negotiations – such as the reduction of wages or working hours, or the advancement of vacations – with its staff before making the decision to apply the perfect suspension. It also found that the employer did not inform the union or the workers about the reasons for the adoption of the perfect suspension.
It is worth mentioning that according to the company’s annual report, the number of workers went from 3,068 in 2019 to 449 in 2020.
For Germán Lora, partner at Damma Legal Advisors, the MTPE’s criteria prioritized aspects more than substance, since it is one of the few items that has been paralyzed since the beginning of the pandemic; and the criterion of reasonableness is not being used in favor of the employer entities. “The authority must be reasonable in analyzing these formal situations to accommodate the perfect suspension work or help the company [a aplicarla bien]”He comments.
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For Brian Ávalos, principal associate of the Payet study, this measure is giving a negative signal to the market regarding the use of this mechanism that maintains labor ties, so it will be preferred to opt for collective redundancies or liquidations. “If a company is bad, the State should create these mechanisms especially so that the company stays alive. There is no more obvious case of economic damage than this case”, He says.
“What the authorities do not realize is what are the final effects of the measures that are adopted politically and that for some cases formality is important and for others it is not”
Germán Lora, partner at Damma Legal Advisors
Lora points out that the company may challenge the measure to the Judiciary. However, this path could take up to four years. At the same time, adds Ávalos, the firm could file a precautionary measure to lay off pending payments while the dispute is being evaluated, although, he warns, this step is not easy to achieve.
Meanwhile, Lora points out that the company can apply again for the perfect suspension for the workers involved for a new period starting from April or May.
BONUS: ON DEADLINES
- The regulation of the perfect suspension points out that if the Labor Authority does not respond to the request within 43 business days, positive silence will be applied.
- In this case, the response took almost ten months. “It would have been good if they responded quickly, both for the company and the employees”Says Ávalos, after mentioning that the deadlines established by the MTPE are not necessarily always met.
- This delay in the term and the interpretation of the positive silence could be used as an argument in favor of the company in the prosecution of the case, says Lora.
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