Castellán

As is public knowledge, on March 18, the controversial Law No. 19,196 was approved, which establishes the criminal liability of the employer for non-compliance with current regulations on safety and health at work. Textually, the norm establishes: "The employer, or, as the case may be, those who effectively exercise the power of direction in the company, do not adopt the means of protection and safety at work provided for in the law and its regulations, in a way that puts in serious and concrete danger, the life, health or physical integrity of the worker, will be punished with three to twenty-four months of imprisonment". It is also established that, from now on, whenever the BSE in its investigations determines (administratively) that there is intent or serious fault in a work accident or occupational disease, it must report to the General Labor Inspection (MTSS) to report to the criminal justice system.

WHEN IS THIS CRIME COMMITTED?

Our Penal Code already provided for figures to punish these omissions in safety matters (example: negligent injuries and negligent homicide). The main novelty of this law is the creation of a "dangerous crime". These are understood as those that typify behaviors that do not cause actual harm, but do have the "potential to cause it". In short, in those cases where non-compliance with the protection measures provided for in the regulations is found, in such a way that the protected legal interest is put in "serious and concrete danger" (in this case the life, health and physical integrity of the worker), the crime provided for will be committed.

WHAT IS MEANT BY EMPLOYER IN THIS CASE?

At first glance, the term "employer" can be interpreted as synonymous with "businessman", but also as a representative of the company, including, for example, the managing partners of an LLC, the directors of a corporation, etc. However, the text of the norm is quite broad and there is still no consensus as to whether it also refers, for example, to employers of domestic service, if it applies to the State, if the concept of "complex employer" developed by labor doctrine applies or not, or if it includes cases of outsourcing, etc., leaving this aspect open for now to the interpretation of the criminal justice system.

WHAT IS MEANT IN THIS CASE BY "PERSONS EXERCISING THE POWER OF DIRECTION"?

The approved text establishes that the employer or "as the case may be" (that is, in their place), those who effectively exercise the power of direction in the company and do not adopt the security measures provided for by the regulations may be criminally liable. This also leaves the interpretation quite open, understanding it is possible to hold any employee in the hierarchical scale of a company responsible (managers, maintenance chief, general foreman, etc.). However, we understand that the norm does not refer to the power of direction in general, but to the people to whom this power has been delegated in safety matters.

HOW IS THIS NEW CRIME PUNISHED?

Regarding the penalty for the crime, the norm has established a minimum of 3 and a maximum of 24 months of imprisonment, so, in case an employer is prosecuted, it will not necessarily be with deprivation of liberty.

WHAT ARE THE PREVENTION REGULATIONS WHOSE COMPLIANCE MUST BE MONITORED TO AVOID LIABILITY?

The main regulations so far derived from Law No. 5,032 of July 21, 1914 ("mother" norm), which in its article 1 establishes the employer's obligation to take safeguard and safety measures for the staff, in order to prevent accidents arising from the use of machines, gears, etc., as well as deficiencies in general facilities. This norm has given rise to different current regulatory Decrees on Safety and Occupational Hygiene. They are, among others:

- Decree 406/88 (industry, commerce and services)

- Decree 89/95 (construction industry)

- Decree 372/99 (forestry activity)

- Decree 306/05 (chemical industry)

- Decree 291/07 (industry, commerce and services)

- Decree 216/12 (rural work)

DECREE 406 OF JULY 17, 1988

In the industry, commerce and services, in terms of occupational risk prevention, Decree 406/88 applies to all work establishments, public or private, of an industrial, commercial or service nature, regardless of their activity. This decree establishes the general conditions that workplaces must have, lighting, ventilation, temperature and humidity, cleanliness, dressing rooms, bathrooms, dining rooms, water supply, first aid kit, electrical installation, handling of loads, cranes, boilers, specific preventive measures against chemical, physical, biological and ergonomic risks and protective equipment (such as: masks, gloves, glasses, lenses, etc.).

DECREE 291 OF AUGUST 13, 2007

It applies to all public and private work activities (with the sole exception of the construction and chemical industries, which have their own regulations). According to this norm, in each company there must be a cooperation instance between employers and workers, whose activity will be aimed at contributing to the management of risk prevention. In those companies where the number of workers allows it, a "Bipartite Commission on Health and Occupational Safety" must operate. In several activity groups, this aspect is specifically regulated (in the Collective Bargaining Agreements of the Wage Councils). Workers have the right, according to this norm, to choose a worker delegate for safety and occupational health and also to request the suspension of a task when there are well-founded reasons to presume that there is a serious risk to the worker's life. In addition, it is expected that the Executive Branch will soon issue a new Decree detailing criteria on safety matters.

POSSIBLE MEASURES TO ADOPT TO MITIGATE THE EFFECTS OF THIS NEW REGULATION

Always. But now more than ever:

* it is essential to control and demand strict compliance with health, hygiene and safety regulations applicable to each sector of activity.

* invest in training staff on safety matters, and in supervisors and "middle management" regarding the exercise of disciplinary power for non-compliance with these regulations.

* document under receipt the delivery of personal protective equipment (PPE), as well as the training sessions given to the staff, in order to eventually prove the different measures taken.

* have the advice of Prevention Technicians (diagnosis, risk assessment associated with the activity carried out, training plans, action protocols).

* support, formalize and even document the work of the Safety Committees, always leaving written record of the topics discussed (including the observations that the company makes due to, for example, the irresponsible attitude of an operator).

* clearly specify in the Internal Work Manuals or Regulations, the obligations and prohibitions of the workers, which will serve as a reference and framework for the conduct that the staff must adopt.

* in those cases where it is appropriate, specifically establish the obligation to use a uniform, PPE and all those aspects related to safety and hygiene, such as prohibition of entry and consumption of alcohol and other substances, prohibition of using cell phones, music players, eating and drinking during working hours, possibility of performing spirometries, etc.

* in terms of sanctions, it is especially suggested to document, keeping an orderly record in the file of each worker, any non-compliance related to safety measures in order to have the evidence to support such misconduct, which may even constitute a cause of Gross Misconduct.

Final Considerations

The rules of the game change with significant dynamism. Even before the enactment of this Law, non-compliance by the employer with safety regulations entailed important consequences. Therefore, our firm has always worked with its clients in the application of the aforementioned measures. However, considering the new norm, the adoption of these precautions becomes even more essential. It should also be noted that its non-adoption could even be used as another element of coercion in the context of collective bargaining, completely distorting the natural framework in which the debate should take place.

Montevideo, April 8, 2014.