Benites, Vargas & Ugaz > Lima, Peru > Firm Profile
Benites, Vargas & Ugaz Offices
AV. 28 DE JULIO N° 1044
MIRAFLORES
LIMA 18
Peru
Benites, Vargas & Ugaz > The Legal 500 Rankings
Peru > Compliance Tier 3
Practice co-head and counsel Liliana Calderón, who is highlighted by clients for her ‘dedication and knowledge‘, leads on the majority of Benites, Vargas & Ugaz‘s compliance matters, frequently assisted by associate Jesús Cornejo. The team advises subsidiaries of business conglomerate Grupo Breca, including Administradora de Empresas and Minsur, as well as counting Telefónica del Perú as a client, for which the practice group carries out risk assessments. The team also updated a compliance programme for Linea 2 Metro de Lima, as well as designing new programmes for non-profit organisations and auditing compliance programmes for insurance companies. Practice co-head Roberto Pereira advises on compliance with anti-money laundering regulations. Since research concluded, and in a major boost to the practice, the firm has hired Juan F Jiménez Mayor as a counsel; a former minister of Justice & Human Rights, Jiménez has specialisations in compliance, constitutional law and penal norms and procedural law – effective as of October 2022.Practice head(s):
Roberto Pereira; Liliana Calderón
Testimonials
‘The team has specialists who – for my sector of non-profit civil associations linked to research and development of public policies – are not common in the law firm market‘.
‘They understand our activities and processes in detail‘.
‘The specialist responsible for our project – Liliana Calderón – perfectly understood the needs of our sector, accompanied the process constantly and patiently, in addition, she was very specific and detailed in the products, processes and policies that we had to adopt as an association‘.
‘The area has a solid team of lawyers specialised in the matter, which provides a quality service with a friendly and collaborative approach‘.
‘Communication is permanent, fluid and they are punctual in the delivery of documents‘.
‘They are lawyers who have a good training in corporate criminal law and solid studies in regulatory compliance‘.
‘The compliance practice of the Benites, Vargas & Ugaz Abogados law firm, led by Liliana Calderón, brings together excellence in service, careful customer service and outstanding experience‘.
‘The compliance team is characterised by being a very cohesive group, dynamic and always attentive to changes‘.
Key clients
Tecnológica de Alimentos (Tasa)
Minsur
Rimac Seguros
Telefónica de Perú
Obrascon Huarte Lain (Peru branch)
Metro de Lima Línea 2
Grupo Inmobiliario Capac
ODP Jesuitas del Perú
Hidrandina
AESA
Asociación de Contribuyentes del Perú
Pluspetrol
Sergemi Contratistas
Work highlights
- Updating and strengthening of Línea 2 del Metro de Lima’s compliance programme to current legislation and the highest international standards.
- Advising Minsur on several internal investigations regarding complaints in different matters presented through a whistleblower channel.
- Conducted a risk assessment process regarding tax and customs matters for Telefónica del Perú, in order to prevent the legal risk associated with them.
Peru > Dispute resolution Tier 3
Having recently celebrated its 30th anniversary, Benites, Vargas & Ugaz restructured and strengthened its team with the promotion of Diego Martínez Villacorta and Ricardo Carrillo Garrath to the partnership (the pair also becoming practice co-heads), and the March-2021 hire of senior associate Christian Wong from Estudio Echecopar member firm of Baker McKenzie International. The firm focuses on domestic disputes work and recent mandates saw Carrillo and senior partners Víctor García Toma and Daniel Figallo leading the successful representation of 12 financial entities in summary proceedings against the Peruvian Congress. Clients also include energy companies, supported by Martínez’s in-house experience in the oil and gas industry, and those from the telecommunications, transport, mining and construction sectors, with typical work involving defence in constitutional processes, contesting regulatory sanctions, and breach of contract and damages claims.Practice head(s):
Ricardo Carrillo; Diego Martinez; Víctor García Toma; Daniel Figallo
Testimonials
‘Dedication, customer orientation and results’.
Key clients
Banco de Crédito del Perú (BCP)
BBVA Banco Continental
Petróleos del Perú (Petroperú)
Telefónica del Perú
Lima Expresa (LAMSAC)
Gilat Networks Perú
Hermes Transportes Blindados
Tren Urbano de Lima / Línea 1 del Metro de Lima
Universidad Científica del Sur (UCSUR)
Empresa de Generación Eléctrica Machu Picchu (Hidroelétrica)
Cosapi
Compañía Minera Lincuna
Peru > Labour and employment Tier 3
Crime and disputes specialist outfit Benites, Vargas & Ugaz has a strong employment litigation practice, headed up by veteran Jorge Luis Acevedo Mercado, who ‘guarantees additional effort‘ for every client; he is currently representing Minera Yanacocha in proceedings alleging gender equality non-compliance. The team also advises on occupational health and safety work, administrative labour cases and migration issues. New partner Carla Benedetti specialises in social security work and assists with inspection processes carried out by SUNAFIL, while, from a pool of eight associates, Natalia Peña Gonzáles is singled out by clients as ‘a capable and rigorous lawyer‘.Practice head(s):
Testimonials
‘The team at Benites, Vargas & Ugaz Abogados had the full willingness to adapt its organization and planning for the particular attention of judicial processes in the northern region of the country.’
‘Natalia Peña Gonzáles is a capable and rigorous lawyer in the details of each judicial process, she knows the jurisprudential criteria applicable to the processes assigned at the regional and national level, and this generates the client’s confidence in obtaining the expected results.’
‘Jorge Luis Acevedo Mercado is a reference labour lawyer in matters of judicial litigation, who guarantees additional effort that the client requires to achieve the expected results.’
Key clients
Administración de Empresas (AESA)
Minera Yanacocha
América Móvil
Lima Airport Partners
Telefónica del Perú
Corporación Primax
Aje Group (AJEPER)
Bureau Veritas del Perú
Komatsu Mining
Grupo Divemotor
Toyota del Perú
Samsung Electronics Peru
Work highlights
- Advised Administración de Empresas (AESA) on a termination and collective dismissal, and following suits claiming reinstatement.
- Representing Minera Yanacocha in proceedings where non-compliance with the law on equal pay for men and women and discrimination have been alleged.
- Advised Lima Airport Partners on a sexual harassment matter.
Peru > Capital markets
Peru > Public law and regulation
Benites, Vargas & Ugaz > Firm Profile
We are a firm with 26 years of experience and leaders in the Peruvian legal market. Our staff is made up of almost one hundred top lawyers in all areas of law, which enables us to analyze cases and transactions from several perspectives in order to propose comprehensive solutions covering every potential risk and contingency.
We offer customized service and permanent contact to our partners, creating sound and long-lasting relationships based on trust and commitment.
We are the only law firm in Peru recognized by TRACE International for compliance with anti-bribery policies and the highest ethical and professional transparency standards
In addition to being the first law firm to obtain the ethics and transparency management certification “Clean Hands”, MC Slovenko a.c. has granted the firm this certification for the third consecutive year. This is after assessing and establishing management controls to be applied to our code of ethics and our anti-bribery policy, which includes the guidelines of the world strategy against corruption in the legal profession. This is a joint project of the International Bar Association (IBA), the Organization for Economic Cooperation and Development (OECD) and the United Nations Office on Drugs and Crime (UNODC) that is focused on the role of lawyers in the fight against corruption, with special emphasis on the relevance of international compliance.
Benites, Vargas & Ugaz Abogados has had a great change in the last year. We have reinvented ourselves. With 26 years of experience, we firmly believe in continuous improvement. We are a law firm perceived by the legal market as very strong in the areas of litigation but we also provide support and great expertise in the other areas, such as the corporate, tax, PI and administrative areas.
We have redesigned internal processes to continue providing clients with our knowledge, experience and legal soundness. We are focused on our highest value, which is the talent of our lawyers, on gender diversity – proof of this is that our general manager is a woman – and on a clear line of career policy, according to which we understand that our associates are the future of our firm.
We are strongly committed to the technological development in our law offices, in addition to a very strong communication and digitalization plan. The world is changing and BVU has felt this change, which has refreshed and strengthened our brand.
Main Contacts
| Department | Name | Telephone | |
|---|---|---|---|
| Lima | Jorge Bárcenas | jbarcenas@bvu.pe | 615-9090 |
Lawyer Profiles
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Labour & Employment Law in Peru
1. Hiring
1.1. Peruvian citizens
In Peru, labour legislation is quite protective regarding the dismissal of employees. The general hiring rule implies a preference and presumption of indefinite-term hiring and only by exception and in the cases provided by legislation (just 9 cases), fixed-term hiring is allowed. These cases are related to temporary and objective reasons.
Fix-term contracts must be written and signed by employees; also, they must consider in the contract the temporary cause that generates the contracts, and this should match perfectly with the type of contract that is celebrated, otherwise, the contract should be considered as inexistent, and the employee will be placed in a position to claim for an indefinite-term contract. The legislation also considers an open clause that allows temporary hiring when the employee has a temporary and objective need, but this doesn’t match with the fix-term contracts established by law.
Laboral legislation does not establish any quantitative limit for hiring staff on a fixed-term contract, in that sense, employers can hire the number of employees necessary under this type of contract as long as they establish there the temporary reasons to justify the hiring in all cases.
1.2. Foreign employees
The labour relationships of foreign citizens entering Peru to provide dependable services to a domiciled company are regulated by the Foreign Personnel Hiring Act. This law ensures that national employees and foreign employees have the same rights and benefits but in practice, there are some differences regarding the procedure of hiring and the limits for foreign employees hiring.
Regarding the procedure, foreign employees need to celebrate a special temporary contract and register this contract in the Ministry of Labor and Employment Promotion (MTPE); this registration is necessary to obtain an immigration status (visa) that allows them for working.
On the other side, regarding the hiring limits, labour law establishes that foreign employees must not exceed 20% of the total personnel of a company and the total remuneration received by foreign employees must not exceed 30% of the total payroll. There is a possibility for companies to request to be exempted from these limits but just in the case of professionals and/or specialized technical personnel, or management personnel for new business activities, or in the event of a corporate restructuring or reorganization, among others.
Also, none of the limits apply to foreign employees who:
- provide services in Peru on an immigrant visa
- are married to Peruvian citizens, or who have Peruvian children, parents, or siblings
- are foreign investors with a permanent investment in Peru of at least five (5) Tax Units (UITs); or,
- provide services in the country under bilateral or multilateral agreements executed by the Peruvian Government, among others.
2. Salary and Social benefits
In terms of labour benefits, employees whether they are hired for an indefinite term or a fixed term contract, have the same labour benefits, which represent around 15 salaries per year, plus the profits that are paid before the annual declaration of income tax; profits are not considered a salary.
Our law establishes a minimum wage which is adjusted periodically by the Peruvian government in coordination with the National Laboral Council; the minimum wage has been recently increased and now the amount is around USD 280.00. The labour benefits that our legislation considers are:
- Family allowance: this benefit applies to employees whose remuneration is not regulated by collective bargaining if they have one or more dependent children under the age of 18 or doing university or technical studies under 24 years. It is equivalent to 10% of the minimum wage.
- Legal bonuses: these are paid two times a year, one in July (national holidays) and another in December (Christmas); each bonus is equivalent to one month’s pay. The legal bonuses are exempt from any provision, contribution, and discount of any nature, e.g., social health insurance and private pension system, except for the discount for income tax and those authorized by the employee. Also, the employer must pay the worker directly 9% of the value of this benefit if the worker is registered with the public health system (Essalud) or 6.75% if is registered with a private health care entity (Entidad Prestadora de Salud, EPS).
- Compensation for time worked, which applies to employees who work at least 4 hours per day. The amount is a half remuneration plus 1/6 of semestral remunerative bonuses paid in a period of 6 months considering May to October and November to April. This benefit is deposited into a bank or financial account chosen by the employee. The employee could access to the deposit when the labour relationship ends.
- Profit sharing, this benefit only applies to companies with over 20 employees on payroll and whose activities generate third-category income. Employers share their profits by distributing a percentage of the yearly pre-tax income. The profits are calculated based on the yearly salaries and the number of worked days. The law establishes the percentage that the employer must distribute among its employees depending on the kind of activities the company does; the percentage ranges between 5% and 10%. The share in profits must be distributed within 30 calendar days of the deadline established in the legal provisions for submitting the annual sworn income tax return.
- Annual leave, which is equivalent to thirty (30) calendar days of rest, with one (1) month of paid remuneration upon completion of each year of service; some companies consider this minimum in working days (22) which be a better condition for employees. The use of annual leave days should be agreed upon between the employer and the employee, if an agreement is not reached, the employer will decide the annual leave period on behalf of the employee. The annual leave period could also be split by a written agreement between employer and employee. It is possible to split it into two periods of 15 days each. The first one must be a period of not less than 7 and 8 days, consecutive, the remaining period can be enjoyed in periods of less than 7 days.
In case employees do not spend their annual leave within the following year they earn this benefit, they are entitled to the annual leave salary plus a compensation that is similar to a monthly salary. This compensation does not a applies to management personnel who have the possibility to determine and choose to spend their annual leave or not.
3. Social security, safety, and health
Regarding social security contributions (EsSalud), employers are forced to make contributions for all their employees, including foreign employees, based on the total monthly compensation, including compensation in kind, with certain exceptions such as profit sharing payments and extraordinary bonuses. The rate of this contribution is 9% of the employee’s compensation.
In terms of pension contributions, the contribution for the National Pension System (ONP) is 13% of the employee’s compensation, and the contribution for the Private Pension System (AFP) is 10% of the employee’s compensation, plus commission for the pension fund administration and insurance premiums for handicap and burial coverage.
In addition, since the beginning of the year 2020, based on a very known case of a fatal work accident, employers are required to hire a life insurance for the employees that provide benefits for disability, death, or death. worker’s burial since the beginning of the employment relationship. This insurance is in addition to the health insurance and to the insurance for hazardous work (SCTR) that employers must hire.
Finally, the legislation is quite rigorous about occupational health and safety. A series of obligations and a comprehensive prevention duty have been established that ultimately result in the main employer being responsible for safeguarding all events related to the safety and health of the employees who provide services in their workplace, including third-party personnel or people with civil contracts. This implies that companies have a high responsibility in complying with the duty to prevent the generation of work accidents, professional illnesses, and any damage to the health of employees or people who work within the company.
It is important to say additional contributions may apply depending on the type of activities the company does.
4. COVID-19 measures
Based on the declaration of State of National Emergency thought by Supreme Decree N°044- 2020-PCM, the government has established several changing labour measures that employees might comply with. The accomplishment of these measures has been supervised by SUNAFIL through a different administrative procedures.
Some of the most representative measures are:
- Remote work has been established since COVID-19 and applies in cases where it could not be implemented a license with payment should apply. Remote work is effective until December 31, 2022. The employer must respect and guarantee the employees’ right to digital disconnection.
- Presential work is allowed but employees should demonstrate their complete vaccination scheme. If not, and the labour activities are not compatible with remote work, the labour relationship will be suspended with no salary pay.
- In communication with unions, employers could use communication technologies.
- The covid-19 supervising Plan is another duty of the employers, they must elaborate a document where the employer all the safety measures consider avoiding Covid-19 in the labour center. These measures must be based on the regulation given by the Ministry of Health, which is very changing.
5. Subcontracting and outsourcing
Regarding outsourcing, our country still allows the outsourcing of activities through two schemes: labour intermediation and outsourcing. In the first case, the companies must be exclusively created for this purpose, and they are just allowed to provide complementary, temporary, or highly specialized services. In the case of outsourcing companies, they do not need to dedicate themselves just to this purpose, this scheme supposes to outsource an integral production process, so cannot involve just the transfer of employees: the provision must include an integral service that is part of the company’s main activity, which means that the outsourcing company must have its own resources, its own workers, independence in the execution of services and plurality of clients.
Regarding outsourcing, currently, the main current modification is the one introduced by Supreme Decree 001-2022-TR, on February 23 of this year. This norm has modified the regulation of the law of outsourcing, restricting its content to services that exclude the core of the business of the company, a definition, and restriction not contained in the Law that regulates this figure.
The disputed standard does not specify the definition of the concept of “core business” and limits itself to pointing out that outsourcing cannot be related to activities that make up this, establishing some criteria to recognize the so-called “core business”, among them:
1. The corporate purpose of the company.
2. What identifies the company in front of its final clients.
3. The differentiating element of the company, within the market in which it develops its activities.
4. The company’s activity generates added value for its customers.
5. The activity of the company that usually reports the highest income.
The norm is in force and has established that those employees of outsourcing companies that are carrying out activities that are part of the core of the business must be transferred to the payroll of the main company within 180 days of the enactment of the norm, that is, until August 22, 2022. The consequences of this measure are that SUNAFIL (Inspection Labor Authority) could fine the main companies that do not comply with this provision, this being a most serious fine in terms of outsourcing (the most onerous of the legislation), in addition to giving to the outsourced employees a position to initiate a judicial claim to recognize a direct employment relationship with the main company.
A big sector of labour experts considers that this modification seriously violates the principle of normative hierarchy insofar as the regulation restricts the initial figure recognized by the Law, as well as an affectation of the right to freedom of contract; we agreed with this position. If this modification continues to be in force, Peru would be joining the list of countries in South America that prohibit outsourcing nuclear activities, including Venezuela, Bolivia, Ecuador, and Mexico.
6. To keep on the radar
One of the most important changes that have been planned by the current government is the implementation of the Labor Code, the preliminary draft of this document was published on April 13. This document, which is in the period of receiving comments and proposes, has included some important regulatory modifications, among them, expressing recognition of principles that help to interpret the labour regulation in a more favorable and protective sense for the employees, as well as the inclusion and regulation of Holdings with the purpose of facilitating their identification; In addition to establishing solidarity between the companies that comprise it, regarding labour and social security obligations.
Regarding labour contracts, the general rule of preference for contracting for an indefinite term is maintained and the assumptions of contracting for a fixed term are restricted (from 9 to 6 cases); Regarding them, one of the most important changes is the elimination of contracts subject to the modality for start a new activity, business reconversion and emergency; and intermittent and seasonal contracts are now considered contracts of indefinite duration.
Limits are placed on the validity of non-competition, exclusivity, and permanence agreements that have never been regulated in our legislation, but only contractually.
Regarding intermediation and outsourcing, the regulation contemplates the recent modification introduced by Supreme Decree 001-2022-TR, which restricts outsourcing activities, prohibiting services that are part of the core of the business of the main company, restricting this figure to services of an occasional nature. The Draft does not make any reference to the intermediation of activities.
The law also includes the regulation of teleworking as the only alternative to remote work, which also implies an agreement between employer and worker; This regulation is quite similar to the one we maintain in force.
One of the most important changes in the section about unions is the proposal to reduce the minimum number of workers to create a union (from 20 to 10 in the case of a company union).
Finally, some important inclusions on equality, equal pay, and non-discrimination have been considered.