"Every form of production is inexorably predatory of nature, from where the inputs are obtained, from man, who delivers his labor power"
1. Introduction
In the economic framework of a free market society, the legislator has limited the direct participation of the highest political body: the State, in everything that refers to economic participation at business levels. This limitation is known as the Subsidiary State Principle. In this regard, Article 19 No. 21 of the Political Constitution of the Republic, provides that: "The right to develop any economic activity that is not contrary to morality, public order or national security, respecting the legal norms that regulate it.
The State and its agencies may carry out business activities or participate in them only if a qualified quorum law authorizes them. In this case, these activities will be subject to the common legislation applicable to individuals, without prejudice to the exceptions established by law for justified reasons, which must also be a qualified quorum; " In this way, the power of the State to undertake any lucrative economic activity in its capacity as a legal entity is removed, and hindering it, it is only allowed when there is a qualified quorum that authorizes it, which is equivalent to two thirds of the Parliament.
Those who hold this doctrinal position, distinguish the functions of the State in their own and natural and in subsidiary functions. In the former they locate everything that refers to the administration of State goods and services, destined to the distributive search and the common good such as education, health, justice, order and security and all those that refer to the State structure.
The subsidiary functions include those that are not clearly natural to the State, since they can be carried out by private, natural or legal entities, such as everything related to economic activity. This does not constitute a supplementary activity, since it is appropriate for the State to act in response to strategic or national security needs, or when individuals have neglected the option. In the same way, individuals act in State tasks, with the idea of contributing in those sectors in which it is useful and convenient for the State and the community to authorize or allow the interference of private parties. Examples of this are education and health, among others.
2.The Prevention of Occupational Risks
The Prevention of Occupational Risks is part of the State's function known as Social Security, elevated to the rank of Constitutional Guarantee by article 19 No. 18, which the State guarantees: ”The right to social security.
The laws that regulate the exercise of this right will be of a qualified quorum.
The action of the State will be aimed at guaranteeing the access of all the inhabitants to the enjoyment of uniform basic benefits, whether they are granted through public or private institutions. The law may establish mandatory contributions.
The State will supervise the proper exercise of the right to social security; ”.
Risk Prevention is incorporated into Social Security through the conception of Social Security, which constitutes a form of exercise of this constitutional guarantee. Indeed, one of them is the Social Security for Workplace Accidents and Occupational Diseases.
3.Foundations for the Prevention of Occupational Risks
The authors collect as fundamentals of occupational risk prevention at least five important conditions of undeniable value:
3.1. Ethical conditions.
The workers constitute a social layer that suffers the weight and rigor of social development. The Philadelphia Charter of 1998, as well as Rerun Novarum, of more than 120 years ago, point out the need to concern the State with the fate of those who create wealth. There is a secular and a theological conception that fully coincide in the concern of the workers.
3.2. A social responsibility.
Recognized by the conception of work from the legal point of view (art. 2, of the Labor Code), in accordance with International Treaties, and which frames the worker within the social responsibility of the employer, which leads to the conclusion of the distance that It exists between the machine and the man, then, this, in addition to being the creator of wealth through the machine, must enjoy his fundamental rights in which he involves his family and his environment.
3.3 and 3.4. Economic foundations.
There are, from another point of view, economic foundations that are related to the maximization of profits, allowing the savings caused by the lack of security in work functions, all of which results in a decrease in productivity and an increase in production costs, therefore, performance decreases and direct and indirect costs increase.
3.5. The law
Finally, the legal foundation impossible to discard without entering the illegal work. The jurisprudence has also recognized the need for Occupational Risk Prevention as an inalienable obligation of the employer and necessary from the point of view of the interest of the worker, his family, the company itself and society as a whole.
4.The State and its purposes
The purposes of the state are summarized in Article 1 of the Political Constitution. In effect, the same State that recognizes the intermediate bodies necessary for the fulfillment of its own purposes; It also recognizes that the State is at the service of the human person and its purpose is to promote the common good, allowing the material and spiritual fulfillment of all and respect for fundamental rights.
Among the guaranteed rights, let us remember, is Social Security and in this Social Security against Occupational Accidents and Occupational Diseases, in such a way that the promotion of Occupational Risk Prevention is in the interest of the State, therefore, not otherwise deals with the respective Law No. 16,744.
As the guarantor of health and life, the State plays an active role in the prevention of accidents and illnesses derived from work. Consequently, it is not only up to him to enact laws to regulate risks, but to supervise everything related to occupational safety, and when the accident or illness occurs, he must take care of the worker and his family, providing the material living conditions that ensure their spiritual and material development. Hence, it is convenient for the State to oversee compliance with the risk prevention regulations, control the agencies intended for their surveillance, apply sanctions and establish procedures for the execution of risky acts, determine the matters that affect the human body and control order, hygiene and safety at work sites.
5.Current weaknesses of the system
Today there are flaws or omissions in the system attributable to the State, of indisputable importance. This work does not pretend to examine in their entirety these shortcomings or omissions, but if, to emphasize that the system is not absolutely perfect, it needs obvious improvements, a matter that will be discussed on another occasion or will be left to scholars in this matter.. In our understanding, the State should better assist the worker protection system in the following aspects.
5.1. Risk Prevention in Chile has become an exceptional burden for most small and medium-sized companies, who must compete, under the same social security conditions for occupational risks, with large companies. This prevents and / or aggravates the situation of small entrepreneurs, who, in order to face these extreme costs, lead to infringement actions, which ultimately make their innovative action more inconvenient.
5.2. The circumstances that the Labor Safety Mutuals, with the exception of the INP, make the provision of services provided by medical institutions directed, organized, controlled and administered by corporations of private sector entrepreneurs, in view of the diligent observer, little transparent, said of another Thus, it is the employers themselves who must establish the nature of the accident or illness and then provide social security benefits.
5.3. The supervision of the mutual service does not exist. That is, the immense responsibility that falls on these organizations is not subject to supervision by any public entity and they enjoy the most complete freedom of action, without the respective audits being delivered to the body that supposedly supervises them, the Superintendency of Social Security, to which they only deliver statistics.
5.4. The supervision of the mutuals to their affiliated companies is another obligation that remains in the program. Currently the mutuals have a prevention agent for eighty companies, without discriminating by number of workers. This is a "mission impossible."
5.5.- The mutuals forgive their affiliates serious damages and high costs, since it is not customary to charge the affiliated company for medical, pharmaceutical, surgical or rehabilitation expenses, even when the company's guilt in the accident or illness is proven. This is not ethically acceptable, even when the Law expresses it as a power.
This practice creates a kind of negative and high-cost solidarity for good companies. Indeed, in a mutual company one company can have zero accidents in a couple of years, and another, several accidents. To the latter, the mutual benefits its negligence by not charging expenses and paying them with the mutual fund in which the "good company" pays, that is, the responsible and the bad company.
5.6. Law 16,744 is a sanctioning and Social Security Law, rather than risk prevention. In this sense, it is up to the State to take legislative measures in order to find a viable proposition for small and medium-sized enterprises, who represent the strong part of the labor force. Hence, it is vitally important for economic development to re-study current regulations, making them more friendly for innovators and people of business ingenuity.
5.7. The ethical aspect of service provision must prevail over the financial interest of mutuals. It is observed how these have been transformed every day more into profit-making entities, which violates the spirit of the Organic Law of Mutuals.
6. Conclusions
Examining the antecedents explained in the previous numbers, we must conclude that the State has ignored the substance of the Risk Prevention Problem, forgetting that it is a national problem rather than that of companies as economic units. It is therefore this higher entity who must take into consideration the irregularities that are noticed in practice, especially when they have the effect of violating the ethical normative spirit of the prevention of occupational risks; discrimination with respect to small and medium-sized enterprises; the lack of monitoring and control of the benefits and others mentioned above.
The State has the obligation to control and supervise the strict compliance with labor regulations, to assume them as a public duty, since that is how the Labor Law doctrine understands it and to carry its protective role to the actions of all its organs.
Only in this way can it be understood that Risk Prevention is not a burden for the employer, but rather a responsibility and obligation of the State, and the innovative conception of individuals will be supported for the realization of their own purposes, which are ultimately the purposes of the community.
