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Páez AndrésCommon questions
Con tecnología de IAThe principles of proportionality and reasonability are critical for ensuring that penalties are fair and tailored to each company's context, thus enforcing justice across differently sized companies. These criteria account for the number of employees and the scale of economic activity, which means that a larger company with substantial resources will face higher penalties compared to a micro enterprise for the same violation. This ensures that the fines serve as an effective deterrent relative to the company's capacity to bear the financial burden without being disproportionately punitive, thereby balancing the deterrence of non-compliance with the economic reality of the entity .
Decree 472 of 2015 requires that financial reporting practices consider the total assets from the past fiscal year as part of the framework to assess penalties related to OHS obligations. According to the principles set out in the decree, companies must prepare accurate financial statements to determine their asset range, which directly influences the fines for non-compliance. Therefore, it is crucial for companies to ensure the integrity of their financial records, as these documents confirm their financial status and determine the specific penalty brackets applicable to them .
Decree 472 of 2015 provides detailed provisions for closing businesses due to health and safety violations. Inspectors of the Ministry of Labor can impose temporary closures ranging from 3 to 10 days if violations are found that endanger the health and safety of workers. For repeat offenders, the closure can extend from 10 to 30 days. In cases of continual non-compliance or repeated infractions, a complete closure of up to 120 days or even a permanent shutdown of the business can be ordered. This is intended to enforce compliance and highlight the gravity of maintaining workplace safety standards .
Companies might face several challenges in complying with the financial and occupational health reporting requirements. First, the need to accurately assess and report total assets using the principles of Colombian accounting practices, such as those in decree 2649, may require significant adjustments in financial management and reporting structures. Additionally, timely and compliant reporting of occupational health incidents to multiple agencies, as required by the Ministry of Labor, might necessitate enhanced administrative coordination and data management. Smaller companies, in particular, may struggle with the resources and expertise necessary to maintain these requirements consistently .
The rationale for incrementally harsher penalties for repeat violations of health and safety regulations is to deter persistent non-compliance and ensure that companies address deficiencies in their occupational health and safety practices effectively. By progressively increasing the severity of sanctions—from temporary closures to potential permanent shutdowns—the regulations emphasize the importance of compliance and the consequences of negligence. This approach not only serves as a punitive measure but also incentivizes companies to take proactive steps to correct issues and prevent further violations, thereby promoting a safer work environment .
Apart from fines, the Ministry of Labor can mandate companies to execute a plan of improvement following identified violations. This improvement plan must include specific activities to correct non-compliances, designation of responsible individuals, and clear deadlines for completion. Though this alternative is present, it doesn’t exclude the imposition of fines or other sanctions but rather complements them to ensure sustained compliance. By requiring companies to actively engage in mitigating future risks and establishing internal accountability, these measures lay a groundwork for future compliance and reduce the likelihood of recurring issues .
According to the regulations outlined in decree 472 of 2015, companies are required to report grave and fatal accidents as well as occupational diseases not only to the Administradora de Riesgos Laborales (ARL) and Entidad Promotora de Salud (EPS) but also directly to the Territorial Directorate of the Ministry of Labor or the corresponding special offices. This must be done within two business days following the event or the receipt of the diagnosis. Although the Ministry has not established a specific reporting format, it recommends submitting a remissive letter enclosing copies of the reports sent to ARL such as FURAT or FUREL .
The fines imposed by the Ministry of Labor are based on a set of criteria as outlined in the new regulations which include the severity of the infraction, recurrence of the violation, resistance to supervision, fraudulent means used to hide the infraction, and others. The fines consider the size of the company by evaluating the number of workers and the company's total assets. The proportionality and reasonability principle must be applied, which ensures that penalties are appropriate relative to the company's capacity. This is further delineated by the ranges set out in decree 472 of 2015 that define the fines using minimum and maximum salary values. It also factors in whether the violation posed a danger, led to economic benefits for the violator, or caused harm to legal interests. The fines can range from 1 to 1,000 minimum wages depending on these factors .
The decree 472 of 2015 outlines that fines are calculated by considering both the size of the company based on the number of employees and the economic scale as represented by the company's total assets. These are measured in minimum legal monthly wages (SMMLV) units. For micro, small, medium, and large companies, different ranges are applied: micro (up to 10 workers), small (11-50 workers), medium (51-200 workers), and large (more than 200 workers). If there is no concordance between the number of workers and the total assets, the assets from the previous fiscal year prevail. The financial status affects the fine scale, with companies of greater financial means facing higher fines, which ensures the proportionality of penalties across different business sizes .
If businesses disagree with penalizations imposed by the Ministry of Labor for non-compliance with health and safety regulations, they have the option to file an appeal against the decision as part of their legal recourse. The process likely involves administrative or judicial review, during which a company can present evidence and argue its case against perceived misapplications of the law or inaccuracies in the assessment of their fines. These legal mechanisms ensure that businesses can contest unjust penalties and seek a fair evaluation of their compliance with the regulations .
