The risk prevention area should be accompanied by a strong training program for the company’s employees.
The enactment of the Economic Crimes Law implied important changes to the Chilean criminal system, as companies may be criminally liable for crimes that are directly related to the social order, the pension system and the health of people in the labor context.
Given that on September 1st the regime applicable to companies will enter into force, it is relevant to make a brief review of the crimes that will now be considered as economic crimes.
This is easier to do by grouping them into different categories:
Payment and withholding of contributions: The law on economic crimes incorporates a penalty for the employer who, without the employee’s consent, omits to withhold or pay the social security contributions of an employee or declares to pay him/her a taxable or gross income lower than the real one, thus reducing the amount of the contributions. In this way, this new crime would be committed in the event that the area in charge of the remunerations of the workers of the company diverts part of the funds collected for social security contributions, generating a prejudice in the remuneration of the workers.
Individual security of persons: Among the offenses contemplated in this category are those of conditional threats, whether or not the purpose of the evil threatened is fulfilled. These are offenses that were already contemplated, but will now be considered as economic crimes. An example of this would be if a company worker -in the context of his duties on site- makes serious and credible threats to inhabitants of communities neighboring the places where the company has a presence, when they trespass on the company’s private property.
Workers’ salaries: The law introduces a new crime related to the payment of disproportionate salaries and lower than the minimum monthly income, seriously abusing the worker’s situation of need, inexperience or inability to discern. In this sense, if a company hires foreign workers who do not speak Spanish, and pays them a salary lower than the legal minimum, in a manifestly disproportionate manner to the salary paid to Chilean workers performing the same activity, it would be committing an economic crime.
Negligence against persons: Those committed by recklessness or culpable negligence (in the case of doctors and pharmacists, for example) are incorporated as economic crimes. Thus, crimes such as homicide, mutilations, castrations, serious and less serious injuries, among others, will be punished. It is important to point out that what we call “crimes against the safety of persons” were already contemplated in the legal system. In this sense, the novelty lies in their new categorization as “economic crimes”.
In this new scenario, the activity of the risk prevention areas for companies becomes especially relevant, particularly in those cases in which we are dealing with companies that carry out activities such as the use of heavy machinery, construction, mining operations, activities involving the use of hazardous chemicals or other activities that may pose a risk to the integrity of persons, since they may be more exposed to the imputation of criminal liability.
As regards the implications for individuals, since these are economic crimes, the system for determining the penalties established in the law applies to them, and therefore the special mitigating and aggravating factors must be taken into account. Likewise, the amount of the fine to which individuals and companies will be exposed will depend on the number of days-fines to which they are sentenced.
Finally, it is important to point out that the incorporation of these crimes will have a significant impact on companies, since they will be more exposed as “employers” and will have to pay special attention to preventive controls. It is also very important to carry out a survey of the activities of the company and its industry, in order to identify the existing controls and implement those that may be missing and necessary.
The risk prevention area will be essential to carry out this task, which must be accompanied by a strong training program for the company’s workers.
For more information on these topics, please contact our #azLabor group:
Jorge Arredondo | Partner | jarredondo@az.cl
Jocelyn Aros | Senior Associate | jaros@az.cl
Felipe Neira | Associate | fneira@az.cl
Palmira Valdivia | Associate | pvaldivia@az.cl
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