It is essential to lead the work group and this implies, among other things, knowing some basic issues to ensure that the human resources engine available to the company works optimally, allowing the employer to dedicate his time to essential issues such as obtaining of higher sales, investments, stock controls, quality of services, etc.
There are two aspects that are relevant. First of all, know the rights and obligations of the parties within the employment contract; and secondly, the task of occupational risk prevention.
To lead a work team, the parties must know the rights and obligations that each one has in the role they occupy in the productive process of the company. The employer must know that he can exercise the powers of organization and management of the company, this is to be able to determine the modality and form of the task, entry time, working day, way of executing the task, vacation period, certain controls , etc.
This is essential, since experience indicates that the worker’s lack of knowledge of the obligations of the employment contract constitutes one of the main sources of labor conflict, all of which threatens the normal development of labor relations.
When hiring a worker, the employer must know that there is a hiring modality that is applied by default, which is the employment contract for an indefinite period (Art 90 Employment Contract Law). That is, if I contract a person without more than the agreement, that will be the contracting modality adopted. But this is not the only hiring modality, but it is essential to know the other tools that the law gives us, according to the needs we have, since we could resort to the fixed-term employment contract – when the hiring is subject to a determined time-; or the temporary work contract – in which we know when it begins but not when it ends, for example when we have an exceptional business need, or to replace another sick worker, or that it begins and ends with a certain work or task -; the part-time contract – when we need the service to be presented on a few days and for certain hours-, etc.
Each of these modalities has specific characteristics. For example, the temporary employment contract does not require prior notice for termination, nor is any compensation paid. In other words, it is extremely important to know the different modalities when hiring a worker.
In turn, although it is understood that most of these contractual modalities are consensual, that is, they do not require a written form, it is highly advisable to write the terms of the contract. We even strongly recommend preparing a regulation with various rules that may govern the company, in addition to the general aspects of the contract, such as days, clothing, customer service modalities, work protocols, tool care, drug use controls, use of tools or assets of the company, regime of diseases and accidents at fault, etc. In other words, a list of standards to which all the people involved in the company must abide. This regulation has full legal value, and the worker’s obligation to abide by what he has is important.
The regulation allows us to achieve an order of conduct of the workers, in such a way that the tasks performed are carried out subject to everything that is available there, making the organization work properly.
If there are later deviations, the employer has the possibility of exercising the disciplinary regime, which is nothing more than a series of tools that the law gives us to redirect the worker’s conduct. Thus, it is possible to resort to a verbal or written call for attention, a warning or a disciplinary suspension, these two in writing and the last one with a discount on the assets.
If eventually the misconduct of a certain worker cannot be reversed, dismissal can be used, which can be ordered with or without cause. For it to be with cause, there must have been a breach by the worker of the obligations derived from the employment contract, the applicable collective agreement or the law that causes injury that due to gravity prevents the achievement of the employment relationship (art. 242 LCT ). It can be a single serious fact; or the sum of minor facts that, when fully analyzed, cause the same effect.
Exercising these rights and obligations, a normative order is achieved within the organization that results in a fluidity of labor relations. It is very important to clearly establish the seriousness of each offense and respect the imposed normative hierarchy.
But, as said, this is one of the tools that the employer has and that are analyzed in this work from the rights that emerge from the faculty of administration and organization of the company. But it is also possible to optimize labor resources by emphasizing the prevention of occupational hazards, since any illness or accident produced, in addition to affecting one or more of the workers in the work team, from a personal point of view, affects the group of work from the productive aspect. For this, there is a specific regulation (Resolution 37 Superintendence of Work Risks), which imposes periodical examinations of concerns -prior to the start of the work task- according to the agent to which the worker may be subjected and in principle in charge. of the ART- and the post-occupational ones, at the time of the worker’s dismissal. If an incapacity were derived from them, the visa process must be used and audited before the Ministry of Labor, as appropriate.
In terms of prevention, it is very important to highlight the interrelation that must exist in the company between the Occupational Physician, the Occupational Safety and Hygiene Technician and the Lawyer specialized in Labor Law. In this regard, it is convenient to briefly review the current occupational risk regime of Law 24,557/95. Unlike Laws 9,688/15 and 24,028/91, Law 24,557/95 raised among its objectives the prevention of occupational accidents and illnesses. The regulation emphasized risk prevention (art. 1 Law 24,557/95)  through a worker protection system through the application of standards related to safety and hygiene at work and occupational medicine, imposing them both on the employer and on the ART.
The obligations of the ART. They are clearly established by Law 24,557/95 as well as various decrees and resolutions of the Superintendency of Occupational Risks. They assume an important role in occupational safety and hygiene insofar as they control the effective compliance of Law 19,587 and other regulatory norms by the company, falling under their responsibility those damages caused by the omission in the exercise of such control. (art. 1749 CCy C)- .
However, the employer maintains an obligation to guarantee the psychophysical health of the worker and the prevention of occupational hazards.
Now, it is medicine that determines the relationship between certain work tasks and the damage that can be caused to the worker, generating from medical science the necessary norms that adapt to it, in order to prevent the damage that eventually they can occur in the worker.
The need to adapt labor regulations – which impose obligations on the employer or on the ART – to the forecasts made by medicine, has developed an innumerable catalog that relates certain diseases with certain tasks carried out by workers.
This has been the subject of express regulation in Decree 658/96, which establishes a closed list of diseases based on an agent –cause- and a possible consequence or effect –disease-, and in the second part of art. 6 of Law 24,557/95, differentiating whether it is a contingency caused by a direct and immediate cause of the execution of the work, excluding the influence of factors attributable to the worker or unrelated to the work.
The lack of prevention can affect the health of one of one or several of the company’s workers, the main pathologies being columnar osteoarthritis (spondyloarthrosis), hearing loss (hearing loss), respiratory system problems, and problems that can occur in the cardiovascular system (stress, hypertension, varicose veins and heart disease), because they are ordinarily the affections that are installed slowly and progressively and for this reason it is often difficult to determine the causal relationship with the tasks that cause it.
In this preventive task, specialized labor advice must also be present, since it constitutes an obligation for the employer to comply with his preventive task, even against the will of the worker, in such a way that he must force the latter to comply with all the necessary precautions. , such as submitting to the examinations provided by the authority (Resol. 37 cited above of the SRT) and those provided by the employer for risk prevention, such as toxicology, the use of security elements, etc.
In other words, the optimization of the company’s labor resources is achieved by establishing clear guidelines for conduct, detailing as much as possible through an internal regulation all the obligations and characteristics of the provision of tasks, exercising the power to organize and direct the company; but fulfilling in turn with the preventive tasks and other obligations that the employer has. And, in the latter, the preventive task is especially relevant, for which the Occupational Doctor, the Safety and Hygiene Technician in the company and the Lawyer specialized in Law must work together. Labor. Undoubtedly, a relationship that should be closer and closer and that also forces the subjects that provide services in each of the areas to work interdisciplinary: the legal department, the occupational medicine department and the occupational safety and hygiene department. .
Lawyer and Master in Labor Law and Social Security.
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