Tipos de contrato laboral | Bismarck Seminario

Summary

The lecture explains employment-contract types under Peru’s general private-sector labor regime, principally Legislative Decree 728. The speaker does not discuss other regimes in detail—such as CAS, Legislative Decree 276, civil-service rules, and special labor regimes—though he notes that some public entities also employ workers under the private-sector regime.

1. What makes a contract an employment contract?

The speaker describes an employment contract as an agreement between a worker and an employer for personal services, performed for remuneration and under the employer’s subordination or direction.

• Personal service: The work is performed by a natural person, using physical effort, intellectual effort, or both.
• Remuneration: The worker receives payment for the service.
• Subordination: The employer directs the work. The worker’s labor benefits the employer or another party, rather than being performed independently for the worker’s own benefit.

A legal entity cannot itself perform personal labor, though it may employ natural persons. Employers may be natural or legal persons, private or public, and for-profit or nonprofit. The speaker identifies the Peruvian State as the country’s largest employer.

A document titled “service contract” is not, on its face, an employment contract. But if the actual working relationship includes personal service, remuneration, and subordination, the speaker says the principle of primacy of reality may establish that the relationship is employment despite the document’s label.

2. Indefinite-term employment

The speaker presents the indefinite-term contract as the legal default and the contract type that offers the greatest employment stability.

• It can be oral or written. It is the only contract type discussed that can be oral.
• Under the rule described in the lecture, a paid, personal, subordinate work relationship is presumed to be indefinite unless a valid exception applies.
• The speaker recommends putting it in writing, even though writing is not required, to avoid disputes over proof.
• It generally carries the employment rights and benefits available under the relevant labor laws, including vacation, bonuses, compensation for length of service (CTS), and family allowance where applicable.
• Because it has no agreed end date, ending it generally requires a legally recognized ground. The speaker distinguishes dismissal based on the worker’s capacity from dismissal based on conduct.

The speaker cautions that an oral or improperly documented relationship may create problems for an employer. He also notes that an employee hired on a fixed-term contract may become an indefinite-term employee if the contract is not properly renewed or if the fixed-term arrangement is legally defective.

3. Part-time contracts

The lecture describes part-time work as work averaging less than four hours per day, calculated using the worker’s weekly schedule. The speaker gives these examples:

• For a six-day workweek, 24 hours per week is the stated upper limit for part-time status.
• For a five-day workweek, the stated upper limit is 20 hours per week.
• Working above the applicable limit may mean the relationship should be treated as full-time and could result in the contract being considered indefinite, depending on the circumstances.

According to the lecture, a part-time contract must be in writing. The speaker emphasizes that benefit eligibility depends on the requirements in each benefit’s governing law; part-time workers do not automatically receive every benefit on the same terms as full-time workers.

The speaker says part-time workers may be entitled to:

• July and December bonuses;
• profit-sharing, if the employer is covered by the relevant rules;
• family allowance, subject to the eligibility conditions discussed;
• mandatory life insurance; and
• inclusion on the employer’s payroll.

He says genuine part-time workers are not entitled to CTS or ordinary vacation under the rules he discusses, and argues that excluding them from vacation conflicts with ILO Convention No. 52. He also states that a valid part-time employee has no protection against arbitrary dismissal through either reinstatement or compensation. These are the lecturer’s legal interpretations; the subtitles do not independently verify them.

4. Fixed-term or “modal” contracts

Fixed-term contracts are described as an exception to the indefinite-term rule. They must be written and, in general, must state a specific, temporary objective cause explaining why the worker is being hired. That cause must be genuine and demonstrable: labeling a job temporary is not enough if it is actually permanent.

The speaker says fixed-term employees generally receive the same statutory labor rights and benefits as indefinite-term employees, but do not have the same employment stability. If a valid fixed-term contract simply reaches its agreed end date, the speaker says that is a lawful way for the relationship to end. If the employer ends it early without justification after the probationary period, the worker may have a claim for compensation for arbitrary dismissal.

The lecture groups nine contract types into three categories.

A. Contracts of a temporary nature

1. Start-up or launch of a new activity

   • Used when a business begins a new activity or opens a new establishment.
   • The new business activity or establishment is the objective cause.
   • The speaker gives a maximum duration of three years.

2. Market needs

   • Used to address a temporary increase in production or demand that cannot be met by the permanent workforce.
   • The increase must be temporary and linked to a specific cause; the lecture uses pandemic-related demand for masks as an example.
   • The speaker says there is no separate maximum duration for this type, but that the general five-year limit may apply.

3. Business restructuring

   • Used for changes such as replacement, expansion, or modification of the company’s activities, technology, equipment, production methods, or administrative systems.
   • The speaker gives a maximum duration of two years.
   • He describes this type as relatively uncommon.

B. Contracts of an accidental nature

1. Occasional contract

   • Covers temporary needs that are different from the employer’s usual activity.
   • The speaker gives a maximum of six months within a twelve-month period.
   • Example: hiring a mechanic temporarily to repair a batch of vehicles when the employer’s usual business is selling cars.

2. Replacement contract

   • Covers a permanent employee who is temporarily absent for a legally recognized reason, while the employer reserves that employee’s position.
   • The replacement contract ends when the regular employee returns.
   • The speaker says the law does not set an express maximum duration; he notes that some interpretations apply the general five-year limit.

3. Emergency contract

   • Used to address an emergency caused by an unforeseeable event or force majeure.
   • Example: hiring workers to reconstruct important company records destroyed in a fire.
   • The speaker says it lasts for the duration of the emergency and discusses uncertainty about whether a general five-year limit applies.

C. Contracts for a specific work or service

1. Specific work or service

   • Used for a defined project or service with a particular objective and an ascertainable end.
   • Example: hiring an engineer for a construction project.
   • The speaker says the law sets no express maximum duration beyond the time needed for the work. He mentions a five-year interpretation and an eight-year position in one court decision, while noting that the latter did not become binding law.

2. Intermittent contract

   • Covers work that is permanent in the employer’s business but occurs discontinuously.
   • The speaker uses fishing as an example, where work may be interrupted by closed seasons.
   • Employment benefits, according to the lecture, accrue for periods of actual work rather than periods of interruption.
   • He says there is no specific statutory maximum duration and cites a Supreme Court interpretation that the general five-year limit does not apply to genuinely intermittent work.

3. Seasonal contract

   • Covers recurring, predictable increases in work at particular times of year.
   • Examples include Christmas retail demand, school-supply sales, and tourism during the summer season.
   • The increase is part of the employer’s usual business but recurs only in particular periods.

5. Renewals, duration, and invalid use

The speaker says there is no general legal requirement for an employer to notify a worker a set number of days in advance that a fixed-term contract will not be renewed. The contract itself should establish when it ends.

He describes a general five-year limit for successive fixed-term hiring where a particular contract type does not have its own maximum. He also mentions a Supreme Court interpretation under which time between successive contracts may be counted together if the worker returns within 45 days. He stresses that successive contracts are not automatically unlawful, but must not be used to evade employment stability or commit fraud against the law.

A fixed-term contract may be treated as indefinite if, among other problems:

• it is not put in writing;
• it lacks a valid, stated objective cause;
• the stated temporary cause is not genuine or cannot be demonstrated;
• the worker is actually performing permanent work under a temporary contract;
• the employer exceeds a legally applicable maximum duration; or
• the relationship is a simulation or fraud.

The speaker identifies these principles as especially important when assessing claims for reinstatement or compensation.

6. Dismissal and worker protection

The lecture distinguishes two broad forms of protection against arbitrary dismissal: compensation and reinstatement. It refers to Constitutional Court decisions that recognized forms of dismissal beyond those expressly listed in the statute, including unjustified and fraudulent dismissal.

The speaker also distinguishes compensation for arbitrary dismissal from damages, describing them as different legal remedies. For a genuine fixed-term contract, he says that expiration of the agreed term is a valid end to the relationship; early termination without justification may instead give rise to a claim for compensation, subject to the probationary period and the facts of the case.

Speakers and sources featured

• Bismarck Seminario — principal lecturer, as identified by the video title; presents the legal discussion.
• Unnamed LP – Pasión por el Derecho host/announcer — appears during the break and promotional segments for LP’s training programs. The subtitles do not establish whether this is a different person from the lecturer.
• Audience members/commenters — several names are read from live comments during the break, but they do not provide substantive legal commentary.

Authorities and sources cited by the lecturer:

• Legislative Decree 728 and its consolidated text, approved by Supreme Decree No. 003-97-TR.
• Supreme Decree No. 001-96-TR, described as the implementing regulation.
• Peruvian Constitution, including Articles 26 and 27.
• Civil Code Articles 140 and 219.
• Legislative Decree 713 on rest periods and vacations.
• Legislative Decree 650 on CTS.
• Law No. 27735 on bonuses.
• ILO Convention No. 52 and the Protocol of San Salvador, Article 7(d).
• Constitutional Court cases referred to as Fetratel and Eusebio Llanos Huasco.
• Supreme Court decisions discussed by the lecturer, including Cassation No. 16549-2014, Lima, and a decision referred to as Cassation No. 1004, Tacna.