La seguridad social en la reforma laboral: fomento de la informalidad y desarticulación del derecho de acceso a la justicia

Abstract

In early legislation in the field of labor relations, occupational risks (accidents and illnesses) were exclusively a concern of labor law, in determining the employer’s responsibility from two angles: physiological (the decrease or loss of ability to work) and the compensatory (loss of income). However in its evolutionary phase, occupational risks, and hence their consequences (disability or death) and their reparation (medical and financial benefits) stemmed from labour law, as evidenced by Convention 102 “Social Security (Minimum Standards)” adopted by the International Labour Organization in 1952 and which establishes occupational accidents and illnesses within its nine branches. In this way, social security laws were able to overcome the employer’s uncertain insolence in granting long-term benefits, such as: pensions. Nevertheless, occupational risks in the country are regulated by both the Federal Labor Law and the Social Security Law. There are significant differences between the two in terms of perspective: the first focusing on compensation and the second on granting pensions. This situation was not addressed in the recent May 1, 2019 reform to the Labor Law, which encourages non-affiliation to social security, instigates informality, and propitiates unequal treatment to workers regarding benefits and ways to claim them, depending on whether or not workers are affiliated to social security, as evidenced in this paper.