Observation (CEACR) - adoptée 2009, publiée 99ème session CIT (2010)

The Committee notes the Government’s detailed report received by the ILO on 26 September 2008, accompanied by statistics for 2007 and 2008 on the activities and results of the inspection services, and the annual reports on the activities of the social inspection services for 2005 and 2006. The numerous legal texts received by the ILO on 15 October 2009 will be examined together with the Government’s next report.

Article 2 of the Convention. Scope of the competence of the labour inspection services. The Committee notes with interest that the inspection functions not only cover establishments and enterprises located in Belgium, but also foreign employers not covered by Belgian social security in respect of workers detached in the country.

Article 3, paragraph 1(a) and (c). Extension of the legislative fields covered by the inspection services. In its previous comment, the Committee noted that action to combat cross-boundary fraud had been given priority among the objectives of the labour inspectorate in 2006. It noted that the system to combat trafficking in human beings rested on a difficult compromise between, on the one hand, the wish to protect victims and offer them prospects for the future and, on the other, the need to combat networks effectively. According to the Government, in addition to the fact that the various types of fraud related to unlawful work are endangering the very financing of the social security system and creating unfair competition with employers that are in compliance with the rules, they prejudice the workers, who are often taken on without any social protection. Furthermore, in many cases, this type of engagement may even be associated with a form of trafficking in human beings in the broader sense. Consequently, inspectors responsible for supervising conditions of work may, in the context of action to combat trafficking in human beings and economic exploitation, deduce that there is a case of economic exploitation where, in practice, they are confronted with situations characterized by such factors as: a wage that is manifestly unrelated to the very large number of hours of work performed, possibly without a rest day; the provision of unpaid services; remuneration levels below the minimum monthly average income established in a collective labour agreement; and the engagement of one or more workers in a working environment that is manifestly not in conformity with the standards set out in the law. The Committee notes with interest that the vulnerability of the victim is an aggravating circumstance in relation to the offence of trafficking in human beings, as set out in section 433septies of the Penal Code, and that consequently the penalty for any person committing such an offence is greater, particularly where the victim is in an unlawful or precarious administrative situation. According to the definition provided in section 433quinquies of the Penal Code, the offence of trafficking in human beings is constituted by the act of “recruiting, transporting, transferring, lodging, receiving a person, giving up or transferring control over such a person, with a view … to causing such person to work or allowing such a person to be put to work under conditions inconsistent with human dignity”. The Government indicates that the social inspection services of the Federal Public Service (SPF) for social security systematically ensure that the work performed by workers “intercepted” at a workplace is, even in the event of unlawful employment, fully and correctly declared to the National Social Security Office so that they can be guaranteed the provision of the related social benefits. With reference to the reasoning given for the Bill relating to the Act of 10 August 2005, the Government emphasizes that the objective is not merely to combat “illegal work”, but rather economic exploitation and that there is a significant difference between “illegal employment under social legislation and economic exploitation”. In cases in which the social inspection services of the SPF for social security identify the existence of an irregularity, they systematically proceed to regularize the situation by submitting a specific form to the National Social Security Office containing certain data on the employer, the worker and their labour relationship in practice, namely the date of the beginning and the end of the worker’s engagement, the remuneration received in relation to the level that should have been paid taking into account the occupation, the number of days worked, etc. The National Social Security Office may at its own initiative draw up or correct this declaration on the basis of legal requirements. It then proceeds to undertake an automatic registration and to calculate and claim from the employer the amount of social contributions evaded based on the illegal employment, and accordingly to guarantee the worker concerned the social entitlements deriving from the work (health insurance, unemployment benefits, pensions, employment accident and occupational disease benefits, family allowances and annual holidays). The employer then pays the amount that is due in social contributions, under penalty of the application of civil financial penalties (an increase in the rate of the contributions and the interest due for delayed payment, and administrative penalties) and/or penal sanctions (imposed by the courts).

The Government adds that, in the context of supervisory activities targeting unlawful or clandestine employment, as well as those carried out to combat trafficking in human beings, the inspection services devote their energies not only to identifying violations relating to unlawful or clandestine employment, but also to ascertaining compliance with laws and regulations respecting conditions of work from the viewpoint of health and safety and of labour regulations (compliance with the wage scales applicable in the sector, working hours, public holidays, etc.).

The Committee however observes that, taking into account the types of fraud related to illegal work to which the Government refers, “undeclared work by foreign workers in an illegal situation”, in view of the wording, would appear to imply that the person committing such fraud is the worker her or himself and not, as in the other types of fraud, the employer. According to the information provided by the Government, a “pro justicia” (report of a violation) or a report of a criminal offence is always forwarded to the judicial authorities where the worker concerned by the contravention of the legislation on the employment of foreign nationals is in a situation of unlawful residence. The Committee would be grateful if the Government would specify whether the absence of a declaration by the worker is an offence attributable to the employed worker and indicate in any event the penalties incurred by this specific type of violation and the procedure applicable in this respect in relation to the employer and the workers concerned, where the latter are employed persons.

The Committee also requests the Government to indicate the manner in which it is ensured that foreign workers engaged in an employed labour relationship, but whose situation in respect of the rules relating to residence is unlawful, benefit from the same protection as other illegal workers. The Government is requested to provide information on the procedure applicable for this purpose and on the role of the inspection services in relation to foreign workers who are subject to being taken back to the frontier or to expulsion.

Noting that an ethical code common to the four federal social inspection services is due to be adopted, following the opinion of the Federal Committee to Combat Illegal Work and Social Fraud, the Committee would be grateful if the Government would provide a copy to the ILO immediately or, if it is not adopted during the period covered by the next report, to provide clarifications on the matters that it covers.

Article 5(a) and (b). Developments in the collaboration between the labour inspection services and other government services and public institutions, on the one hand, and the social partners, on the other. The Committee notes the composition of the two bodies of the Department of Research and Labour Information to combat social fraud and illegal work, established by the Framework Act of 27 December 2006, namely the General Assembly of the Partners and the Federal Guidance Office, which include representatives of the Office of the Attorney-General and of the four inspection services, as well as other public social security institutions, the National Pensions Office, the National Institute for Sickness and Invalidity Insurance, the National Family Allowances Office for Employees, as well as representatives of employers and workers’ unions. The Committee would be grateful if the Government would indicate the role of the inspection services in these structures and its impact on the discharge of inspection functions, as determined in Article 3(1) of the Convention.

Specific cooperation with judicial bodies. Educational and information exchanges. In reply to the 2007 general observation, the Government indicates that training for all supervisory personnel provided by an alternate judge of the court of Brussels was organized in September 2006. It covered issues relating to the powers of labour inspectors, penal repression, penal referral, the setting aside of cases and administrative penalties, the organization of judiciary enforcement and, particularly in the context of penal labour law for civil action, time limits, etc. The Government adds that a circular issued by the College of Prosecutors General in courts of appeal, dated 18 January 2007, recalling the general principles of prosecution and intended to harmonize judicial practices, recommends that labour auditors (representatives of the Office of the Attorney General in social jurisdictions) ensure joint training in their districts for labour inspectors and police officers with a view to improving knowledge sharing. The Committee notes this information with interest and would be grateful if the Government would continue to provide information on exchanges between the labour inspection services and judicial bodies with a view to enabling labour inspectors to describe to professionals in the judiciary tangible cases illustrating the gravity of the human, social and economic consequences of failure to comply with or deliberate violations of the legal provisions covered by the Convention.

Communication of the judicial action taken on cases referred by labour inspectors. The Committee notes with interest that, as envisaged in section 14 of the Act of 16 November 1972 respecting labour inspection, labour inspectors are already informed, at their request, of the action taken on the violations reported by them to judicial bodies, and that such communication will be compulsory and automatic as from 2012 through access to the information technology systems recording court decisions. It also notes with interest that, in practice, the directorate for administrative penalties already systematically transmits rulings to the inspection services which identified the violation. The Committee would be grateful if the Government would indicate the practical impact of the measures to provide systematic access by the labour inspection services to judicial decisions on the matters resulting from their action, in terms of the credibility and effectiveness of the labour inspection services.

Article 15(c). Confidentiality of the source of any complaint and of any link that may exist between a complaint and a visit of inspection. While noting that, as indicated by way of example by the Government, a labour inspector may decide to conduct a general investigation even where a complaint only covers the failure to provide holiday pay, the Committee nevertheless observes that the investigation may be “confined” to the subject of the complaint where a general investigation has already been undertaken in the specific enterprise in the previous five years. The Committee requests the Government to indicate the manner in which it is ensured in such cases that, as envisaged in Article 15(c) of the Convention and with a view to protecting the complainant from any reprisals, the inspector shall treat as absolutely confidential the source of any complaint and shall give no intimation to the employer or his or her representative that a visit of inspection was made in consequence of the receipt of a complaint.

Articles 17 and 18. Progressive decriminalization of violations of certain provisions of the labour legislation. The Committee notes that, under the terms of the circular of 18 January 2007 referred to above, labour auditors are invited to give preference to the referral of matters to the administrative fines service, where this is envisaged, with prosecution in the criminal courts being reserved for more serious offences, cases in which no action is taken to regularize the situation, manifest bad faith, repeat offences or the non-payment of the proposed remedial measure. The Committee would be grateful if the Government would provide information on the impact of this decriminalization of violations on compliance with the legislation concerned and if it would provide specific examples of cases of violations referred to criminal jurisdictions and the corresponding decisions.