One of the primary concerns of an employee or former employee who decides to take legal action against their employer or former employer to claim the payment of benefits or entitlements due to a breach during or as a result of the employment relationship, is the real possibility of enforcing a payment order following a favorable judgment. This situation can become complicated when companies seek to evade such responsibility by employing various mechanisms to dispose of their assets and thus avoid paying these debts.

In this context, the Peruvian State has sought to establish certain principles and mechanisms aimed at protecting workers' rights, the foremost of which is enshrined in the Political Constitution of Peru, which states the following:

“Article 24: … the payment of wages and social benefits to workers takes priority over any other obligation of the employer.”

As can be seen, this article establishes that the payment of wages and social benefits takes precedence over any other obligation of the employer, a provision that has been interpreted as such in the Constitutional Court Ruling No. 00020-2012-AI/TC.

However, this concept, as developed in the Political Constitution, does not in any way suggest that such “priority” is equivalent to the concept of “persecutory” nature of credits. The latter has been developed by a subordinate legal norm, namely Legislative Decree No. 856, which outlines the parameters for applying the protection established by the Constitution. This decree not only specifies which entitlements are considered "labor credits" but also the circumstances under which the persecutory nature of the employer's assets should be applied.

Thus, it is essential to initially establish that the principle of the persecutory nature of labor credits is based on the premise that, since labor credits take priority over any other corporate obligations, when cases arise in which companies (with fraudulent intent) "transfer fixed assets to third parties" to avoid paying labor credits, workers or former workers may pursue those business assets to collect their labor debts.

Article 3 of Legislative Decree No. 856 establishes that the previously mentioned priority is exercised with a persecutory nature over the employer's assets only in the following cases:

  • When the employer has been declared insolvent, leading to the dissolution and liquidation of the company or its judicial declaration of bankruptcy. The action extends to the transfer of fixed assets or businesses made within six months prior to the creditor's declaration of insolvency;
  • In cases of termination of labor relations and non-fulfillment of obligations to workers due to simulation or fraud of the law, that is, when it is proven that the employer unjustifiably reduces or distorts production to cause the closure of the workplace or transfers fixed assets to third parties, or contributes them to the formation of new companies, or when they abandon the workplace.

The first important point to note is that the Political Constitution does not expressly or implicitly support the concept of the persecutory nature of credits, at least not with unlimited scope; therefore, as we can see, persecutory nature is a privilege and must always be interpreted restrictively, not surpassing other fundamental rights.

Given the two situations outlined in Article 3 mentioned above, for the purposes of this article, we will analyze the scenario contemplated in subsection (b), specifically addressing a situation previously discussed by the Ministry of Labor through Report No. 109-2020-MTPE/2/14.1 dated November 20, 2020, which addresses a query regarding the persecutory nature of labor credits within the framework of trust formation.

To do so, it is important to understand that "A trust is a legal relationship whereby the settlor transfers assets in trust to another person, the trustee, for the creation of a trust estate subject to the fiduciary ownership of the latter, and committed to the fulfillment of a specific purpose for the benefit of the settlor or a third party known as the beneficiary" (Art. 241° Law No. 26702); therefore, it is clearly established that the trust estate, given its special nature, constitutes an autonomous estate, such that it possesses an existence independent of that of the settlor.

This special estate does not respond to the obligations of the trustee or the settlor, nor of their successors, and regarding the obligations of the beneficiaries, such liability is only enforceable on the fruits or benefits that are available to them, as the case may be (Article 253° of Law No. 26702).

In this context, we must begin with the first premise that although trust estates are not expressly mentioned within the scenarios contemplated in Article 3 of Legislative Decree No. 856, we are dealing with a case of transfer of assets to third parties (trust estate), and consequently, this figure should not be excluded from the scope of the aforementioned norm.

In light of the above, the question arises: Is it possible to affect the assets of employers forming trust estates without limitations? Could such an impact be considered constitutional?

Analyzing the aforementioned norms and the nature of each concept, it can be concluded that it would be unfeasible to resort to diffuse control to disregard Article 253° of the General Law of the Financial System and the Insurance System and thus seek to give absolute preference to the persecutory nature of labor credits.

To do so and to apply persecutory nature without limitations would result in a clear and severe violation of Article 87° of the Political Constitution, which establishes that the State promotes and guarantees savings, as the nature of a trust lies in guaranteeing a commercial and financial operation through the intervention of money, which comes from all of us as savers.

In this regard, we partially share the position of the Ministry of Labor in the aforementioned Legal Report, to the effect that even though, in principle, the assets transferred into a trust form part of an autonomous estate (distinct from the estate of the settlor) of the trustee and the beneficiary, this would be the case only if none of the scenarios described in Article 3 of Legislative Decree No. 856 are present.

Therefore, if the conditions set out in subsection (b) of Article 3 of Legislative Decree No. 856 are met, namely:

i.       The termination of labor relations and non-fulfillment of obligations to workers; and

ii. The employer, despite having pre-existing labor obligations, contributes its assets to the creation of a trust estate, this would demonstrate the intent to evade payment of wages and social benefits owed to workers.

Only in such a case, by applying the principle of the persecutory nature of labor credits, would the employer's assets transferred to the trust estate also be subject to the preferential or priority payment of labor credits; therefore, it is up to the competent judicial authorities to determine in each specific case whether the factual conditions exist for the priority payment of labor claims to be exercised with persecutory nature concerning the assets contributed by the employer to the trust estate.