Subordination and working time in the Peruvian labor system: The suitability of the ‘making available’ for the determination of working time

In this article, the suitability of subordination, understood as being made available to the employer, was analyzed to determine what should be considered as working time. In the Peruvian system, what is working time is understood in opposition to rest time. This dichotomy is overcome by various intermediate situations that require a criterion that allows us to qualify when we are faced with working time; and, therefore, grant the employee the protection that this fact generates. It was suggested that, from a temporary point of view, subordination implies that period that the employee makes available to the employer for its legitimate use in the interest of the company and in which it is possible that the employer exercises any of the faculties of the steering power. This lapse of time also carries with the affectation of the employee’s ability to freely manage this lapse in his particular interest. It was concluded that such way of understanding the subordination has sufficient and suitable elements to classify, case by case, a situation as working time. To reach this conclusion, not only the current regulation of working time was based on, but also the main pronouncements of the administrative and judicial courts of the highest hierarchy of Peru were examined in which this criterion was used to grant protection to the employee.