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Summary: I. Introduction. II. Historical context and normative regime of cas in peru and its implications for the public administration and safety in the workplace. III. Challenges facing workers CAS COVID in the performance of its functions and the achievement of the health goals. IV. Opportunities, limitations and risks which could hinder the access to the administrative career of the workers of CAS COVID in the framework of the reform of the function and professionalization of public administration. V. Proposals and recommendations for improving the employment situation of workers of the CAS of COVID and strengthen their role in the public health response to COVID-19, from a perspective of human rights, gender equity, and sustainable development. VI. Conclusion. VII. Bibliography.
I. Introduction
The last of June 30, 2022, the Congress of the Republic of Peru was unanimously adopted by the law No. 31539 that authorizes the change of contract type of care workers and administrative staff in the health sector who were hired under the special regime of Legislative Decree No. 1057, known as CAS COVID-19. Thanks to this standard, they acquired “some” rights.1
Por both, who exercised their right to work, you can enroll in a public organisation under a contract of work for pay in exchange for services under conditions of subordination in exchange for a salary that such organization is in a position to pay the worker and allow it to carry a decent standard of living and adjusted to the socio-economic needs of contemporary.2 Given that the labour Law is a branch of Law that regulates the relations of the people at your work place, that is to say, the role that it plays in the interdependence, having consequences for individual and collective, whose object is the overall progress of the people.3
Therefore, this law seeks to recognize the efforts of the medical staff who have been on the front line of battle against the pandemic of the coronavirus, and to give them a greater job stability and benefits, establishing a change of contract for a progressive and gradual, according to the needs and budget availability of each entity of the health sector. Therefore, stipulates that the Ministry of Health (MINSA) and the Social Health Insurance (EsSalud) should develop a plan of implementation of the law within a period of no more than 90 days.
Given that the law implies that workers will enjoy the same salaries that the CAS regular and will be able to return to the positions they were in before the emergency decrees would grant them special regimes of labour recruitment, the process must be carried out in a period of at least 30 calendar days of occurring the circumstances specified in the requirements. In addition, it provides for the payment of a bonus extraordinary to health staff providing direct care to patients with COVID-19, however, it applies only to the medical and administrative staff with contract CAS-COVID-19 that provides services in the Ministry of Health (Minsa) through the public sector entities, regional governments, the health services of the Armed Forces, the health services of the National Police of Peru and the Social Health Insurance (EsSalud).
The modification of the form of recruitment of health workers and administrative staff in the health sector covered by this special scheme is an issue that has generated controversy and claims on the part of those affected. In this sense, we analyze the problems that posed in the national legal system, the emergence of the regime of contract administration services (CAS) in the Public Administration.4
Although, this law authorizes the transfer of these workers to the regime CAS regular, with the aim of standardizing the working conditions and guarantee the right to work on equal terms, to access this benefit, you must meet a number of requirements, such as having been working in different areas COVID-19, have been in the registry AIRHSP until July 31, 2022, and to have the Resolution of Term of SERUMS in the case of health professionals. In addition, the places or positions to occupy must be available and registered on the CAP, CAP P-CPE or PAP of the entity concerned. In the current labour laws, recognized the violation of the right to work and the damage it causes to the workers.5
In this sense, the present text aims to analyze the legal status of workers engaged in special regime COVID under the Contract Administrative Services (CAS) set to face a health emergency, caused by the pandemic of COVID-19 in Peru and, in particular, to examine the ability of these workers to have access to a regular contract of CAS, that gives them greater employment benefits and employment stability from the main normative aspects and case law governing both types of contracts, as well as the criteria and requirements that must be met to make the walkability legal regime to another. With the aim of identifying the challenges and opportunities associated with the transition of the CAS COVID to the CAS normal, both for workers and contractors in the State
II. Historical context and normative regime of CAS in Peru and its implications for the public administration and safety in the workplace
The CAS, or Contracts, Administrative Services, is a complex matter. Before there was the CAS, the workers at the service of the State were divided into two groups: those who had a private regime, with contracts mode, or uncertain, and that had a public system, with specific rules. Both regimens had some benefits, such as vacation, bonuses, social security, etc., however, the policy of the contracting state is based on signed contracts civil or location of services, governed by the civil standard, where not recognized employment relationship or the rights that entails. This caused a social reaction and many lawsuits service providers, who were demanding that they be recognized as workers indeterminate and, therefore, that they be paid their social benefits.6
In this sense, to the contract type of contract services administrative special, commonly referred to as CAS, arises as a type of administrative contract exclusive of the State, which requires a public entity with an individual who provides services under subordination. According to the special rules on the matter, article 3 of Legislative Decree No. 1057, and article 1 of Supreme Decree No. 075-2008-PCM. In accordance with article 3 of Legislative Decree No. 075-2008-PCM, this special arrangement is governed by public law, giving to the contract under this regime, the benefits and obligations defined in the standards listed, excluding those benefits, allowances and bonuses that apply to public servants under other regimes co-exist in the public administration, such as the regime of administrative career (Legislative Decree No. 276), or in private employment is regulated by the Legislative Decree No. 728.7
However, the Administrative Contract Services - CAS is based on the contractual regime of general content in the civil Law, in such a way that it refers entirely to the special regime associated to the special position occupied by the public Administration within our legal system (Céspedes, 2023). Despite that, the principle of the primacy of reality is a legal criterion that applies in the labour law to protect the worker. According to this principle, what matters is the real situation experienced by the worker against the employer, beyond what is stated in the documents or agreements that attempt to hide or simulate a working relationship. Whereas, in order to determine whether or not there is an employment contract, must be analyzed in three essential elements: 1) the worker pay personally the service, 2) To receive remuneration for their work, and 3) That it is subordinated to the employer. These are some of the elements that are present in the contracts CAS, although the Constitutional Court in the Sentence No. 002-2010-PI/TC gave them a legal nature mixed with the regime general.8
Despite the fact that the administrative contracting for services - CAS is another way of contracting without working relationship that, although you are not a contract for accommodation services, yes, they are a contract administrative services that, to the contrary of the first, grant the employee benefits that do not offer the services not personal to avoid the contratación illegal. Of course, the CAS does not apply to the private sphere, but it is estimated that the changes have begun in the labour sector is less developed, the public. Given that the State, as a body of principles, you should respect unconditionally labour rights with his example; ironically, it is the main institution that violates these rights, causing damage to the labor system in Peru.9
While the historical context and normative regime CAS in Peru has had important implications for the public administration and safety in the workplace. So, in the beginning, the regime CAS in Peru was intended to provide flexibility in the procurement for the public institutions, has now given place to a lack of job security and fair pay for many workers.
III. Challenges facing workers CAS COVID in the performance of its functions and the achievement of the health goals
Before the situation created by the pandemic of COVID-19, announced by the World Health Organization (WHO), the Peruvian authorities have declared a public health emergency, using all the protocols necessary public health to address the pandemic. In this sense, one of the measures taken by the MINSA has been “the recruitment of health personnel under the special regime of Legislative Decree No. 1057, decree that regulates the special regime for the recruitment of administrative services - CAS for the provision of services and functions of prevention, control, diagnosis, and treatment of COVID-19 at the national level in the Care Centres and Temporary Isolation (SIC)” (Emergency Decree No. 055-2020, 2020); indicating that these contracts are exempt from article 8 of Legislative Decree No. 1057.
In consequence, and authorized the Ministry of Health to temporarily employ staff in the form CAS, a Contract Administrative Services (CAS) is widespread in the field of health, designed to overcome a series of labor contingencies in the State, prior to the implementation of a single regime,10 the provision of services in the Care Centres and Temporary Isolation (CAAT) eximiéndoles of the public contest of merits. Contratándose a total of about 6000 health workers and administrative staff to alleviate the shortages of health personnel need to and mitigate the negative impact of the COVID19 in the population of the country during the health emergency.
The immediate consequences of both the pandemic and the actions of response include a significant drop in economic activity and an increase in unemployment, which are reflected in the levels of poverty and social conditions.11 Because the State, following the guidelines of the World Health Organization (WHO), adopted the state pandemic and proposed restrictive measures of social mobilization and emergency measures for the health system. The staff had to work under pressure due to the virulence of the COVID-19.
In the Peruvian State coexist different labour regimes, in addition to the diversity of scales and concepts wage, the system of career truncated, the recruitment incomplete and the lack of updating of the documents management, among other factors, could be having a negative influence on the proper management of the resource at the government entities. The lack of policies, training and skills development aggravates these problems, because the public authorities are unaware of the importance of the management of human resources or because the organization does not have the necessary resources for such an investment. Added to this is the lack of a clear policy on training, as this is considered a set of courses sporadic and the provision of information and useful to the officials, regardless of any monitoring or evaluation of its effectiveness.
On the other hand, to implementation of health measures against this virus, including the closure of workplaces and the quarantine at home, led to a jump in the use of the telecommunications networks by part of the population in relation to the supply of goods, social communication and access to information. However, son numerous analysts that provide a stagnation or a global recession this year due to the crisis of COVID-19.12
In conclusion, the challenges that have been faced by the workers of CAS COVID in the performance of its functions and the achievement of the health goals have been important. Since protective equipment is inadequate to long working hours and limited access to training, these workers have faced numerous obstacles in their efforts to combat the pandemic. However, despite these challenges, have continued to work tirelessly and with great dedication, often at great personal risk.
IV. Opportunities, limitations and risks which could hinder the access to the administrative career of the workers of CAS COVID in the framework of the reform of the function and professionalization of public administration
Currently, while we are in a moment in which to talk about possible economic risks-in great measure resulting from a slowdown gradual economic growth, the reality is that, looking at the immediate past, the macroeconomic performance of our country from 2008 have yielded encouraging figures. For that, Peru has had the opportunity to consolidate its growth and development after overcoming their differences with the global economic community. So, it should be noted that studies and important analysis on public administration in Peru, enables us to conclude that a sustainable economy and successful has been possible thanks to the implementation of a decentralized State, transparent, efficient and modern, that provides its services for the benefit of the citizens.
In this context, and digital government in Peru points through his diagnosis that the digital transformation is reduced ultimately to the human factor, so that the digital capacity of the public institutions in this country, will be determined by the quality, the productivity and ingenuity of the human team, as well as the rules and processes of the functioning of these teams.13 It also says that the technical skills needed to support the digital transformation of the public administration are rare and quite demanded in the workplace, there is an urgent need to give priority to the improvement strategies, restructuring and attracting new talent to the public sector to address this problem.
In the last few decades, we have introduced new models and types of governance, with different results after its application to practice. So, throughout the modern republican history, we can observe how they have alternated governments of marked tendency statist, centralist or liberal, until you get to a certain combination of these typologies, affecting directly or indirectly the economy of our country, especially in the last few years.
The literature suggests that the challenges of human talent for the digital transformation can be divided into two aspects: suction capacity of talent (how to attract and retain the talent digital) and adaptability (how to improve the talent existing).14 In addition, a human resource strategy must start by identifying the gaps in: talent digital to facilitate the digital transformation in the public sector; skills and knowledge that workers can improve in your current employment position (skills development); and skills and knowledge necessary to retrain workers whose jobs are eliminated (recycling).15
In this sense, the emerging hypothesis about the future of the working world is that the reduction of jobs administrative accelerate in the coming years and, on the other hand, will increase the number of new jobs, primarily related to new digital technologies. At the state level, we will have to work not only in the training of existing staff, but also in the development of new models of selection, recruitment, training and professional development that take into account the changes that are taking place and that are likely to occur. The transition does not mean only you look at the problem from a functional perspective, but also include other important aspects, such as the inherent value of public action and the creation of a new organizational culture appropriate to protect the democratic principles and the rule of Law without penalizing the jump in productivity, and enabling that the change brings with it.16
In this sense, the proliferation of remote working is already an ongoing process and, in the opinion of all the participants, it is urgent to organize the means to move inevitably to the office as the central place natural and workforce development. It is necessary to remember that this is not only a change of place of work, but a mutation that disrupted many traditional ways of working, such as those that regulate the working hours. So, the daily communications and face-to-face should evolve toward a process of movement of workers mixed or non-face-to-face, in which it will address issues such as meet the rights of the officials and protect an organizational culture committed to the public sector17.
On the other hand, the existing rules were considered to be a breeding ground of privilege, the misconduct and excessive uniformity, which results in a decrease of the productivity. In addition, in the opinion of the experts, the public administration has been the victim of patronage, captive audience for the creation of political forces opposed to the organization meritocratic and commercial matters. From there, he foresees a future in which the reforms will reduce significantly the expenditure, and the changes should make as close as possible to the management of public employment to what happens in the private sector. Thus, the specifications of the contract shall include the objectives that must be achieved, and this will be the point of reference to evaluate the performance.
In the institutions, inequalities are especially persistent. The simple maintenance of dynamic routine you can stop any innovation, and an organizational culture rooted you can slow down any change project. What is certain is that, at the time of applying the rules and actions developed by the policy makers, it is sometimes forgotten that the public authorities are not neutral, because “in the application process, the purpose and the content of public interventions continue to be (re) defined, in one way or another. that [are not] only the legislatures and the political leaders, public policy makers [...]”.18
The pandemic of COVID-19 has created both opportunities and challenges for the employees of the CAS who aspire to enter the administrative career. On the one hand, have acquired valuable experience and skills to deal with complex situations and urgent, as well as greater visibility and recognition for their work. On the other hand, they face the uncertainty and instability of their work situation, as well as potential barriers and risks to gain access to competitions and training programs necessary for the professionalization of public administration.
Consequently, it is essential that the reform of the function and development of the professional career of public officials take into account the specific needs and circumstances of the employees of the CAS, and provide them with the support and guidance appropriate to facilitate their transition to the administrative career.
V. Proposals and recommendations for improving the employment situation of workers of the CAS of COVID and strengthen their role in the public health response to covid-19, from a perspective of human rights, gender equity, and sustainable development
Some of the thematic axes to consider in the development of a proposal on the challenges and opportunities of workers hired under the regime of contract COVID Service Special staff (CAS) from a perspective of human rights, gender equality and sustainable development are:
1. Recognize the contribution of the workers CAS de COVID in the care of the health emergency and to ensure its stability of employment by the change of the contract to the mode CAS regular
Workers CAS de COVID are a group of professionals who have made a valuable contribution to the health emergency caused by the pandemic. However, their work situation is precarious and vulnerable,19 as his contract is temporary and does not give them the same rights and benefits that regular workers of the CAS. Therefore, it is proposed to recognize the contribution of the workers of COVID-to-CAS and ensure the stability of your employment by changing your contract to CAS regular.20
Change that would mean that the workers CAS de COVID would become part of the special employment regime of Legislative Decree No. 1057, which regulates the contract administrative services, and that they would have the same conditions and benefits that other workers CAS. In this way, they would recognize their effort and dedication in the fight against COVID-19 and would provide more safety and labour protection.
2. To Ensure that workers CAS de COVID receive compensation according to their functions and responsibilities, without reducing your current income
Workers CAS de COVID are those who provide health services and care to people affected by the pandemic. These workers play a key role in the fight against the virus and deserve recognition, just for your work. However, currently they are in a situation of precarious work, because they don’t have the benefits, and the stability that workers have appointed or hired. Therefore, it is proposed to ensure that the workers CAS de COVID receive compensation according to their functions and responsibilities, without reducing your current income.
This proposal seeks to ensure the dignity and well-being of these workers, as well as to encourage their commitment and motivation. In addition, it is a measure of social justice, because it recognizes the effort and the risk that they assume these workers to be exposed to the contagion. For these reasons, it is considered necessary and urgent to develop and implement a public policy that ensures an adequate remuneration for workers CAS de COVID.
3. Prioritize the recruitment of workers COVID CAS carrying at least a year working in the center and have taken care functions or administrative areas COVID-19 special attention
It is evident the need to prioritize the recruitment of workers CAS de COVID with at least one year of seniority in the institution, which hassincen made care functions or administrative areas, COVID-19, due to the introduction of the social determinants of health as a new element in the analysis of health and its close relationship with the category of inequalities.21
On the other hand, according to the Legislative Decree No. 1057, which regulates the special regime of public procurement of services (CAS), workers CAS have the right to automatic renewal of your contract if they comply with the requirements set out in article 8 of this decree. These requirements include a satisfactory evaluation of the performance. In this sense, the employees of COVID CAS that they have at least one year in the institution and have been working on support or administrative in the different areas of COVID-19 have demonstrated a high level of commitment, responsibility, and effectiveness in the performance of their obligations, what makes them deserving of the autorenewal of your contract.
Article 23 of the Peruvian Constitution stipulates that work is a duty and a right. It is, therefore, the foundation of social welfare and a tool for personal fulfillment. Article 25 also states that the State recognizes the right of workers to participate in the profits of the company and encourages other forms of participation. In consequence, the employees of COVID CAS who have worked in the institution for at least a year and have played support tasks or administrative in the different areas of COVID-19 have contributed with their work to the social well-being and personal accomplishment, which gives them the right to participate in the benefits of the institution, and other forms of recognition.
In addition, article 1 of the Code of Ethics of the Public, states that public servants must act with loyalty to the State and the institution to which they belong, as well as with respect to the fundamental rights of the people. In the same way, article 4 states that officials will act with efficiency and effectiveness in the performance of their duties, looking for the optimization of public resources.
In this sense, it can be argued that the workers CAS COVID leading at least a year working when in the institution and have made efforts to support or administrative in the different areas of COVID-19 and have acted with loyalty to the State and institution, as well as with respect to the fundamental rights of the persons affected by the pandemic, which makes them worthy of a continuity of labour.
4. Promotion of the training and the professional development of staff of COVID CAS and their participation in processes of reclassification or public tender
Lye workers of COVID in CAS are a group of professionals who have taken up the challenge of fighting the pandemic from different areas and functions. They deserve a recognition for their work, and the opportunity to develop and improve their working conditions. Hence the importance of promoting the training and professional development of these workers, as well as its participation in the process of reclassification or public tender.
Training and development professional that would allow them to acquire new competencies and skills, update their knowledge and strengthen their performance. In addition, they would open the doors to access the best jobs, with greater stability and compensation. Thus, it would contribute to the improvement of the quality of the health services and to the satisfaction of the users.
The fact of participate in processes of reclassification or public contest will give them the opportunity to change your work situation and access to the benefits of the Public service Act. Among these benefits are the career meritocratic, performance assessment, remuneration in line with market conditions and a comprehensive social protection. This would imply a recognition of the efforts and the commitment of the workers of COVID CAS with the country.
Consequently, contribute to the formation and development of the personnel of COVID CAS, as well as its participation in the process of reclassification, or public procurement, is a measure of just and necessary that will benefit both the workers as well as to the society as a whole.
5. Promote a culture of respect and recognition to the workers CAS de COVID, avoiding any form of discrimination, harassment or violence in the workplace, and promoting gender equity and diversity
It is of those who provide health services, prevention, care, and follow-up to the people affected by the coronavirus pandemic. These workers perform important work that involves high risks to the public health and social well-being, so they deserve a fair and dignified treatment by their employers and of society in general. The political Constitution of Peru recognizes the right to work as a fundamental human right, which implies respect for the dignity, freedom and equality. It also provides that the State guarantees protection against discrimination, harassment and workplace violence, as well as the promotion of gender equality and diversity in the workplace.
Taking into account the above, we should develop a culture of respect and recognition of the workers of COVID CAS, avoiding any form of discrimination, harassment, or workplace violence to threaten their physical, psychological or moral. It should recognize your effort, dedication, and commitment to public health and to provide appropriate conditions for the performance of its functions, such as personal protective equipment, training, compensation fair and timely manner, social security and job stability.
In the same way, should be promoted gender equality and diversity in the health sector, assessing the capabilities and contributions of the workers of COVID CAS without distinction of gender, age, origin, identity, sexual orientation or any other personal characteristic. Should be guaranteed to all workers of COVID CAS equality of opportunity and access to employment benefits and should be prevented and punished any form of violence or discrimination by reason of gender or diversity. This reinforces the health-care system and improving the quality of life of the workers of COVID CAS and the people they serve. Therefore, it is an ethical duty and a legal State, the employers and the society as a whole.
VI. Conclusion
Recent efforts at reforming the system, difficulties have been encountered, but there are hopes that it will produce positive changes in the future. It is important that policy-makers and stakeholders to continue working to get the system to give priority to the welfare and the rights of workers, while allowing for effective public administration.
It is important to recognize the challenges faced by the workers of CAS COVID, giving them the support and resources to ensure a better equipment to perform its functions and achieve the purposes healthcare key that allow you to protect our communities against any health crisis at the global level.
It is necessary that the reform of the civil service and the career development take into account the specific needs and circumstances of the staff of the CAS and provide them with the support and guidance appropriate to facilitate their transition to the professional career in the public service.
Finally, the workers of the CAS of COVID are key actors in the fight against the pandemic of coronavirus and, therefore, they deserve the recognition and respect of the entire community. Your job involves great difficulties and risks, which should be offset by decent working conditions and fair. Therefore, the State, employers and citizens have an ethical and legal obligation to ensure the right to work of workers of COVID CAS and protect them from any form of violence or discrimination in the workplace.
