REM CURRENT NEWS
Extension of the State of Emergency.- The State of National Emergency was extended until October 31, 2021, with the corresponding restrictive measures.
Deadline for perfect suspension and other measures.- Both the perfect suspension of work created as a result of COVID-19 and other measures based on the rule that created it, are in force until October 2, 2021.
The parties -and therefore, the employers- retain the power to adopt the measures established in the labor framework in force (such as scheduling vacations; modifying the workday or work schedule following the procedure established by law; among others).
Disciplinary sanctions for unfair or illegal strike.- The Supreme Court has issued jurisprudential doctrine with criteria for sanctions for illegal collective work stoppages:
(i) The strike materialized despite having been declared improper, generates liability for the days of non-attendance.
(ii) The illegal strike entails disciplinary liability for unjustified dismissal from the day after the employer has called the workers by means of a notice (which in turn only proceeds with a final administrative declaration of illegality).
(iii) During the work stoppage there is no obligation of the employee to work, nor of the employer to pay remunerations.
INSPECTIONS
The Court of Labor Inspection (TFL) has considered that the injunction measure may not be used for infringements whose correction is impossible, because their effects have been completed.
In the case under analysis, the inspector required a pre-occupational medical examination, the non-existence of which had already been observed during the inspection proceedings. The Federal Labor Court found that since “the facts were irreversible, in so far as the time for which the plaintiff had to carry out the occupational medical examinations expired in the respective annual period, it follows that what was ordered is materially impossible to comply with”.
Since the requirement contained other extremes, the TFL considered that the impossibility to comply with one of the mandates means that the others are not enforceable either.
The extension of the term of the sanctioning procedure requires motivation.- The TFL analyzed the requirements for the Authority to verify the expiration of a sanctioning proceeding:
(i) The term to resolve is 9 months from the notification of the imputation of charges.
(ii) The term may be extended exceptionally, before its expiration, for up to 3 months.
(iii) This power is discretionary but requires the agency to issue a resolution.
(iv) The expiration of the proceeding may be ex officio or at the request of the party concerned.
(v) The declaration of lapsing does not affect the audit proceedings or certain evidentiary means, under certain conditions.
Regarding (ii) the extension of the deadline, the TFL states that it is an exceptional power of the authority, which requires due motivation. The authority must specify the objective reasons on which its decision is based to determine whether the reasons are in accordance with the law, considering a necessary analysis of proportionality.
In the case under analysis, the sanctioning authority had justified its decision on the excessive burden and the need to carry out administrative actions, a reasoning that the TFL considered insufficient because it was expressed in a general manner, without including evidence or grounds. It declared the extension of the term and therefore the expiration of the procedure inadmissible.
OCCUPATIONAL SAFETY AND HEALTH
Health and safety infringements resulting in an occupational accident are sanctioned as a single infringement.- This is what the Federal Labor Court ruled when it revoked part of the fine imposed on a company for infringements that would have resulted in an occupational accident.
The fine had been calculated on the basis of five very serious infringements that would have caused the accident. Each of them was independently attributed to the same Article of the regulation, which penalizes “non-compliance with occupational health and safety regulations resulting in an accident causing harm to the worker”. The Court has defined that such provision sanctions the non-compliance “of the regulations”, which involves all the conducts that have caused the accident, so they must be applied jointly.
Obligation to submit an annual report on health surveillance of workers to the health authority.- For further information, see the following link: https://www.estudiorodrigo.com/wp-content/uploads/2021/09/alerta-laboral-27set.pdf
