The deadline for companies to adapt their Internal Committees for Accident Prevention (CIPA) to the terms of MTP Ordinance 4,219/22 and Law 14,457/22 ends on March 20th and 21st of this year, respectively, but few companies are already prepared.
Law 14,457/2022, known for instituting the Emprega + Mulheres Program [“Employment + Women Program”], implemented various measures to support parenthood. The goal was to reduce the imbalance in labor relations between men and women, seeking gender parity.
Among the various provisions, Law 14,457/2022 instituted measures to prevent and combat sexual harassment and other forms of violence in the workplace, and assigned responsibility for these measures to the CIPA.
In the same vein, Ordinance 4,219/22 detailed some new CIPA obligations established by Law 14,457/22 and changed the nomenclature to Internal Committee for the Prevention of Accidents and Harassment ("CIPA+A").
In addition to other measures it deems necessary, the CIPA+A shall:
- Include in the company's internal rules (and make them widely known) rules of conduct regarding sexual harassment and other forms of violence.
- Establish the procedures for receiving and following up on complaints of sexual harassment and other forms of violence and, when applicable, apply administrative sanctions to those directly and indirectly responsible, ensuring the anonymity of the person making the complaint.
- Include in the CIPA's activities and practices topics related to the prevention and combatting of sexual harassment and other forms of violence.
- Carry out, at least every 12 months, training, orientation, and awareness actions for employees of all hierarchical levels in the company on topics related to violence, harassment, equality, and diversity in the workplace.
Main questions regarding CIPA+A
Due to the legal changes, we have discussed with many of our clients what the main impacts for companies are and, especially, what the role of the CIPA+A is. The answers to the main questions are presented below.
Aren't the new CIPA+A duties the responsibility of a company’s Compliance department? How can the new role of the CIPA+A interfere in a company’s Compliance?
No. The Compliance department is responsible for creating and implementing a company's ethical guidelines, ensuring compliance with legislation and internal rules. These guidelines involve various topics, such as fighting corruption and money laundering, conflicts of interests, data protection, and moral and sexual harassment, among others.
To this end, codes of conduct, internal policies, complaint channels, and internal procedures for investigation are created. All these procedures are created with the participation of other departments of the company, such as Human Resources, Legal, and the Executive Board. This is because there are legal, people management, and top management engagement issues involved in the entire compliance process.
The new duties of the CIPA+A are a part of a company's compliance program, since the legislation defined that the body must only establish procedures for receiving and following up on complaints, investigating facts, and applying sanctions involving sexual and moral harassment.
There is no provision for the CIPA+A to participate in the internal investigation involving reports of sexual harassment or violence at work.
In this manner, there will be no replacement or segregation of compliance activities in favor of the CIPA+A. The two groups must work together to ensure the efficiency of the entire program to prevent and combat sexual harassment.
Should the CIPA+A participate in investigations involving allegations of moral/sexual harassment?
No, unless the procedures established by the CIPA+A provide for its participation.
As determined by the legislation, the CIPA+A is only responsible for establishing the procedures for receiving and following up on complaints, investigating facts, and applying sanctions, and the CIPA+A does not have the right to participate in the investigation process.
We believe that if the intention of the legislation was that the CIPA+A participate effectively in the investigation, there would be an express provision to that effect.
Thus, the role of the CIPA+A is not to participate in investigations, but to assume a strategic role in combating harassment. It is important that there be synergy between the compliance area and the CIPA+A so that, anonymously and without details of the investigation or outcome, the CIPA+A can receive information about the existence of reports of sexual harassment or violence at work. This will make it possible to structure prevention measures and training, orientation, and awareness actions for employees in an efficient manner.
Must the results of investigation procedures on sexual harassment and violence at work be shared with the CIPA+A?
No, except if the procedures established by the CIPA+A itself for receiving, investigating, and applying sanctions have such a provision.
The legislation stipulates that the CIPA+A must include in its activities and practices topics related to the prevention and combat of sexual harassment and other forms of violence, in addition to carrying out actions to train, orient, and spread awareness among employees.
The legislation also expressly guarantees the anonymity of the whistleblower. The exposure of the aggressor or the victim can constitute moral damage, which is why information relating to the investigation, such as the name of the victim, the aggressor, the narrative of the facts, among others, must be kept confidential and shared with people necessary for the investigation only if indispensable.
The sharing of comprehensive information, such as mapping the number of confirmed cases of sexual harassment or violence at work, unconfirmed cases, the number of reports on the subject or by department, for example, helps the CIPA to fulfill its role more efficiently.
This information will be useful in structuring orientation measures, such as lectures and training, which are the CIPA+A's obligations. It helps clarify concepts, explaining to employees which behaviors constitute sexual harassment, how to identify cases of harassment of co-workers, what the procedures are for reporting it, for example, helping strategically in the performance of the CIPA+A's activities.
Can the CIPA+A interfere in the employer's directive/disciplinary power, defining the procedures for receiving and following up on complaints, as well as the administrative sanctions that must be adopted by the companies?
In the legislation on the subject, there is no provision that gives the CIPA+A the power to directly punish employees involved in cases of harassment or violence in the workplace.
It should also not be forgotten that the CIPA+A is composed of an equal number of company and employee representatives, which gives the employer participation, through its representatives, in deciding on the procedures that will be established to receive and follow up on complaints, in addition to the procedures for applying administrative sanctions
In addition, for companies that already adopt a procedure for receiving, investigating, and applying disciplinary action in cases of harassment, the CIPA+A may decide to keep the format already adopted by the company if it believes it is an efficient process.
It is important to remember that Regulatory Norm No. 5 (NR-5) assigns to the CIPA the responsibility of following up on the process of risk identification and assessment, drafting and participating in the implementation of the work plan with preventive action in safety and health at work, in addition to following up the analysis of accidents and occupational diseases, proposing improvements to resolve the problems identified.
In short, the CIPA's role has always been focused on preventing the risks of diseases and accidents that can affect employees, as well as on implementing measures to mitigate these risks.
Moral or sexual harassment, in and of itself, does not constitute an occupational illness or accident. However, if the employee develops any psychological or physical illness as a result of the harassment he has suffered, this illness will be considered an occupational disease.
Thus, sexual and moral harassment, as well as other forms of violence at work, can be framed as potential risks to the employee's health arising from the work environment and, therefore, must be fought by the CIPA.
The changes to the CIPA+A’s duties are aligned with the ESG principles ( Environmental, Social and Governance), which, in its social pillar, contains aspects about fighting moral and sexual harassment in the workplace.
After all, what will change in the CIPA+A’s activities?
The CIPA+A should play a strategic and important role in preventing and combating sexual harassment and violence in the workplace.
To this end, it must establish procedures for receiving complaints, investigating the facts, and applying administrative sanctions. In parallel, it will be necessary to carry out actions to train, orient, and spread awareness among employees and include in their activities topics about preventing and fighting sexual harassment and other forms of violence.
Although the CIPA+A does not put into operation or participate in the procedures regarding the investigation, it must adopt measures to prevent sexual harassment and other types of violence, such as periodic training and lectures. For this, the mapping of statistical data collected by the compliance department should be used based on information received by the whistleblowing channel.
