Republic Vice President Delcy Rodriguez announced that President Nicolás Maduro “based on scientific contributions, with health committees”, has made the decision to extend the 5+10 formula and will now become formula 7+7.”
This new method arises from the results published by the Venezuelan Institute of Scientific Research (IVIC), together with the Health Commission, as the first week of flexible quarantine was favorable and the population behaved civically and responsiblely. The method consists of seven days of quarantine and seven working days with strict compliance with health measures.
Therefore from Monday, June 8,a new working day of 7 + 7 will take effect.
BASICS OF SUSPENSION
It is no other than the aforementioned Decree declaring the State of Alarm to attend to the Coronavirus Health Emergency (COVID-19) dated 13 March 2020 which established the following:
Article 8. The President of the Bolivarian Republic of Venezuela may order the suspension of activities in certain areas or geographical areas. Such suspension also entails the suspension of work activities whose performance is not possible under some remote modality that allows the worker to carry out his work from his place of room.
In the implementation of that decree, the Presidency of the Republic has ordered the setting of a working day of seven (7) continuous working days, and then suspended the work activities for the same number of days in order to observe strict quarantine.
CONTRADICTION WITH LOTTT
The first stumbling block is Article 173 of the LOTTT which provides:
Limits of the working day.
LOTTT Article 173.
The working day shall not exceed five days per week and the worker shall be entitled to two days of rest, continuous and remunerated during each working week.
According to the above, it should be collected that the day of 7 days of work x 7 days of quarantine, is the maximum weekly day allowed for continuous process companies that can work from Monday to Sunday, as well as for other incorporated sectors such as the textile and footwear industry, hardware stores, hairdressers, mechanical workshops, and others in the authorized hours to work.
In the same order of ideas, the President of the Republic established as working on Saturdays and Sundays.
HOW THE NEW DAY SHOULD BE IMPLEMENTED
Of course, there is a regulatory vacuum that prevents unquestionable answers. However, the following may be collected:
- You can continue with the days of 5 days of work for two rest, since as we said above, the day of 7×7 is the maximum allowed. Literally the worker provides services during an uninterrupted week, followed by a week of strict quarantine.
- A day of 7 days (Monday to Monday) can be established as long as it is met within the established times, and do not exceed as a whole 40 hours per week.
EFFECTS OF THE REDUCTION OF THE WORKING DAY
Sets the LOTTT to the following:
Article 167. It means a working day, the time during which the worker is available to fulfill the responsibilities and tasks at his/her expense, in the social process of work.
Article 172. Where the employment relationship has been agreed on a part-time period, the salary corresponding to the worker shall be deemed satisfied when the respective aliquot is fulfilled, unless agreement between the parties most favourable to the worker is fulfilled.
Article 177 . The National Executive may, in the regulations of this Law or by special resolution, set a shorter day for those work that requires excessive effort or are carried out under conditions of risk to the health and safety of workers.
There is no doubt that we are facing a reduction in the hours by a resolution of the Mandatory National Executive, even if it has not been published in the Official Gazette.
Consequently, the first effect of the reduction in the day, in accordance with the legally established, is on the salary since, since the worker will not provide the service or be available during the 7 days of strict quarantine, his salary shall be calculated in accordance with The provisions of Article 172 of the LOTTT, that is to say on the basis of the days actually worked.
This does not rule out the possibility of granting any compensatory and substitute income of wages to the worker during the quarantine period, since our considerations are based solely on the provisions of the law, and not on the infinite possibilities of negotiation.
Undoubtedly companies will have to turn to their power of reorganization, because, although this reduction in the day has not been published in the Official Gazette, it is no less true that the spirit and purpose, in the words of the Vice-President, is “to avoid crowds,”therefore it does not seem possible to set rotating shifts, but all activities must be suspended for 7 days. The Banking Association in its Circular to All Institutions was very clear in expressing that it is 7 days of activities and 7 days of strict quarantine.
OUR LATEST RECOMMENDATION
We consider it vitally important that whatever timetable is adopted, given that the change of day is due to a Force Majeure reason referred to in the 13/03/2020 Alarm Decree, the Committee on Safety and Health endorses this change in schedule as a measure to prevent Coronavirus.
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