The value of compliance in the business world has been intensifying over time and has managed to address various issues, in a cross-cutting manner, with a view to achieving universal compliance with internal and external regulations within the company. In this sense, labor compliance is defined as the corporate function aimed at preventing and managing the risks associated with a possible non-compliance with labor regulations of the business organization.
In this context, one of the main areas that a labor compliance program should cover is related to the social security of workers and their working conditions. Indeed, every company should organize itself so that its administrators, managers and workers themselves do not commit infractions or crimes against the safety of its workers. The need for inclusion as a corporate criminal risk is based on two grounds: (i) although currently these crimes are not imputable to the legal person itself, in any case of commission of the same, the main responsible parties will be the executives, administrators and senior managers and (ii) the reputational risk for a company in which these types of crimes are committed is not minor.
It should be noted that, according to Chilean law, these crimes, which are often categorized as “quasi-deliberate”, do not require direct malice for their configuration, but reckless conduct is also punishable. Thus, despite the fact that the existence of knowledge or intent on the part of the executives of a company regarding the unsafe working conditions in the company is not proven, in the event of an eventual case of injury, illness or death of a worker, they will also be investigated and could even be convicted.
Although there is a labor law that obliges companies to prevent occupational risks and not a criminal regulation of the above applicable to the legal person, despite the fact that the objective of the former includes the prevention of situations of a serious nature that could constitute a crime, the fact that the “infringement of the rules of prevention” in the workplace is a requirement for the configuration of one of these crimes, catalogued as “dangerous crimes”, leads to the need to adapt a good preventive system that allows establishing clear limits, particularly in those cases in which the victim (the worker) is responsible, as it can be proved that the company did adopt all the necessary safety measures to prevent the accident of one of its employees.
This being so, and given that there are ample possibilities of commission in the case of dangerous crimes in the company, both because of the responsibility of senior management for insecurities in the workplace, and because they can also be committed by omission or even imprudence, it is relevant and necessary to have a good model of occupational risk prevention, which addresses the prevention of crimes in the company, even though they are not imputable to the legal entity as such.
Implementing a preventive culture, based on a safety policy for workers, with a correct system of supervision and delegation of functions, is key for the prevention of criminal liability in this area, which, on many occasions, comes from the infringement of duties.
This, considering that one of the most common risks in organizations are accidents at work and that the vast majority of convictions are based on: (i) there was no specific risk assessment by the company and its executives, (ii) there were no safety measures, (iii) there was no proper supervision and delegation of functions and/or (iv) workers were not properly trained, among other points.
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For more information on these topics please contact our Compliance and Labor group:
Jorge Arredondo | Partner Labor Group | jarredondo@az.cl
Francisca Franzani | Director Compliance Group | ffranzani@az.cl
Florencia Fuentealba | Associate Compliance Group | ffuentealba@az.cl
