Observation (CEACR) - adoptée 2012, publiée 102ème session CIT (2013)

Convention (n° 81) sur l'inspection du travail, 1947 - Belgique (Ratification: 1957)

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Observation

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The Committee notes the comments of the Confederation of Christian Trade Unions (CSC) of 29 August 2012, which were forwarded by the Office to the Government on 18 September 2012. It also notes the Government’s consolidated report received by the Office on 15 October 2012.

Articles 3(1)(a), 2, 5 and 16 of the Convention. Extension of the legislative areas covered by the inspection services. The Committee recalls the previous indications in the Government’s reports, noted in its previous comments, that action against illegal work, including social fraud, social dumping and unfair competition among businesses, particularly in the context of abusive transboundary posting under Directive 96/71/EC on the posting of workers, is a particular focus of the legislative authorities. This has led, on one hand, as described in previous comments, to the establishment of specific coordinating and consultative structures dedicated to action against this phenomenon, such as the Social Research and Information Department (SIRS), in addition to shared databases and electronic notification systems. On the other hand, significant legislative initiatives have been taken, such as the adoption of the Social Penal Code in 2010, which regroups and repeals many previous Acts, such as the Act on labour inspection and the Act of 30 June 1971 concerning administrative fines, in order to establish the legal framework for a strategic and coordinated approach. The Code provides in section 2 that a strategic plan and an operational plan, setting out the action to be taken, IT projects to be developed and methods of implementation, shall be drawn up each year.

The various labour inspection services were assigned new tasks, and the Committee was therefore interested in the impact of these new structures on legal enforcement, the follow-up action by labour inspection services and the development of strategies in that area, while having due regard to the discharge of the primary functions of labour inspectorates.

The Committee notes the statistics provided by the labour inspectorate on the legislative framework to be implemented and the statistics on the infringements recorded and the action taken. It also notes the 2012 action plan, submitted in reply to its request. It notes that the plan provides for actions to be taken to combat social fraud by various inspection systems, including the social legislation inspection unit (CLS) of the Federal Public Service for Employment, Labour and Social Dialogue. It notes from the plan that 40 per cent of CLS activities are devoted to combating social fraud and 60 per cent to its core functions (compliance with individual and collective working conditions and remuneration, working time, hours of rest, including rest on Sundays and public holidays, organization of industrial relations), and that the CLS comprises 200 social controllers, supervised by 35 inspectors in its 24 divisions in the country. The Committee notes that, in this strategic framework, social legislation inspection will target social fraud more in the form of social dumping and transboundary fraud, which is in violation of Directive 96/71/EC on the posting of workers, as well as the phenomena of false self-employment and employment for umbrella companies. This is confirmed by the information provided by the CLS in reply to the questions raised by the Committee, according to which inspection of foreign enterprises is organized in collaboration with inspection services from other countries.

The Committee would be grateful if the Government would continue providing information on the activities undertaken by the CLS, including in the SIRS district units, and to indicate the form of social fraud addressed and the activities undertaken in light of the broad definition in the Social Penal Code which defines social fraud and illegal work as any violation of social and labour legislation that falls within the scope of the federal authority (section 1 of the Social Penal Code).

Measures taken with regard to workers in an irregular situation, but whose situation does not amount to trafficking in persons or evident exploitation. The Government indicates that the inspection services – in the framework of their coordinated operation in the district units – endeavours not only to identify infringements regarding undeclared or irregular work, but also to enforce legal provisions and regulations concerning working conditions in terms of their health and safety.

The Committee recalls that neither Convention No. 81 nor Convention No. 129 contain any provision suggesting that any worker be excluded from the protection afforded by labour inspection on account of their irregular employment status. Foreign workers in an irregular situation are often doubly penalized in that, in addition to losing their jobs, they face the threat of expulsion, if not actual expulsion. The function of verifying the legality of employment should therefore have as its corollary the reinstatement of the statutory rights of all the workers if it is to be compatible with the objective of inspection (General Survey on labour inspection, 2006, paragraphs 77–78).

The Committee once again requests the Government to provide further information regarding the measures taken to ensure that workers in an irregular situation benefit from the same protection in respect of their working conditions as workers with a regular status, without fear of expulsion pursuant to the immigration laws, and therefore of a deterioration of their situation as a result of labour inspection. In this regard, the Committee requests the Government to provide information on infringements detected and action taken including penalties imposed that further the protection of workers in an irregular situation.

Articles 10, 14 and 16. Inspection of workplaces as often and as thoroughly as is necessary. 1. Staff available in the federal inspection service for welfare at work of the Federal Public Service for Employment, Labour and Social Dialogue. The Committee notes the CSC’s comments alleging a severe lack of staff in the only inspection service responsible for the enforcement of occupational safety and health legislation. According to the CSC, the staff available in this service is insufficient to inspect a significant proportion of employers, which has often been emphasized in the official reports of this inspection service. According to the figures in the service’s 2009 report, the number of inspection visits carried out per inspector is in practice 320 a year, while each inspector would need to inspect 2,800 enterprises. One out of three employers is inspected several times a year and consequently the 320 visits carried out cover fewer employers. Given the number of employers (268,078 according to the National Social Security Office), each employer will theoretically be inspected once every 20 years. The union also indicates that this shortage has continued for many years and that, due to ineffective inspection, in 20 to 50 per cent of cases, important safety and health provisions are not given effect. The official annual report states that the Belgian system for prevention cannot result in a significant improvement in compliance with regulations and that the inspectorate is facing, in a considerable number of enterprises, a level of bad faith which it does not currently have the means to address. The union adds that, despite its various actions, the situation deteriorated further in 2010, as staff numbers fell by 13 from the 2009 figures, and only 12,606 employers were inspected. Its conclusions on the efficiency of the inspection services regarding occupational safety and health are confirmed by a study carried out under the auspices of the Committee of Senior Labour Inspectors (SLIC) of the European Commission, which had also underlined the severe staff shortage in Belgian labour inspection compared with the situation in the rest of Europe.

The Committee notes from the 2010 annual report of the federal service for supervision of welfare at work, which is available on its website, the indication that the number of enterprises liable to inspection seems to be very high compared with other EU Member countries, despite new recruitment. The total number of staff declined by 13 per cent in 2010 (249) compared with 2004 (269). According to the report, the 249 staff include 187 labour inspectors. The Committee notes that in 2010 1,668 inspections were carried out in the context of accident investigations and 1,597 following a complaint; there were, in comparison, 7,036 routine inspections. It also notes the indication in the annual report of the inspection service that, due to the limited capacity of the inspectorate, the selection criteria for opening cases following employment accidents are restricted to those resulting in temporary incapacity for work of at least 15 days and/or permanent incapacity of at least 5 per cent. In other regions, further restrictions are applied due to a critical lack of inspectors. In this context, the Committee also notes the indication of the CSC with reference to the 2002 annual report that significant employment accidents often occur in workplaces where the same failure to comply with regulations had already caused minor accidents and adequate preventive measures had not been taken. This situation applies primarily to enterprises in categories C and D, where there is no prevention adviser. The Committee invites the Government to indicate the measures taken to alleviate the staff shortage reported by the CSC and by the SLIC and the inspection service itself. It would be grateful if the Government would indicate the measures taken to ensure that industrial accidents regularly give rise to an investigation and to provide statistics on industrial accidents, as required by Article 21(f) of the Convention.

The Committee requests the Government to indicate the measures taken, both in terms of prevention and of sanctions, to improve compliance with occupational safety and health legislation.

2. The Committee notes in the social inspection report the development of data mining, a new tool to improve detection of social fraud through the more effective targeting of inspections, which appears to be used by the social inspectorate and by the CLS. This tool functions by analysing indicators for fraud by an employer, for example, a sharp rise or drop in turnover, the sudden mass recruitment or dismissal of workers, etc. The tool also enables the detection of a wide variety of infringements, such as undeclared worksites or workers, breaches in respect of temporary unemployment, illegal subcontracting and wages paid “under the table”. According to the report, infringements were discovered in two thirds of enterprises in the construction sector.

The Committee requests the Government to provide information on data mining and to indicate how this tool facilitates the planning and coordination of labour inspection and the extent to which it could ease the workload of the CLS so that it can concentrate more on the inspection of working conditions in the strict sense of the term.

Articles 5(a), 17 and 18. Legal action and penalties. Decriminalization of penalties in the Social Penal Code. The Committee notes the CSC’s comments that the violations reported by the labour inspectorate rarely lead to effective sanctions, which is often explained by the failure of the courts to take action, which means that action is not taken against offenders, as well as by a slow and ineffective system of administrative fines. In particular, the reporting of violations is time consuming and only leads to a result after a long period. Of the 55,986 reports by the inspectorate in 2010, 51 per cent noted infringements. Reports of violations were drawn up for 931 of the most serious infringements, but only 241 cases resulted in a sanction or an out-of-court settlement, that is 26 per cent of cases. Between 2005 and 2010, this figure rose to 30 per cent.

Furthermore, the Committee notes with interest the Government’s information on the GINAA and e–PV (electronic reports of violations) IT projects. The Government specifies that, since 2010 the electronic pro justitias have been in operation in the Federal Public Service for Employment, Labour and Social Dialogue. This means that a report can now only be drawn up in an electronic online version, in a standardized format. The Committee notes from the report of the social legislation inspectorate that the ePV should guarantee a better quality of reports of violations, owing to faster processing, and the more efficient exchange and classification of information. The electronic reports are electronically signed by their authors and are centralized in a data bank, facilitating the elaboration of internal and external statistics. The Government specifies that GINAA is the centralized database of the administrative fines service and the e–PV system incorporates GINAA data. The Committee invites the Government to indicate the impact of the electronic reports on the efficiency of labour inspection activities including on the enforcement of adequate penalties for violations of the legal provisions.

The Government adds that the Social Penal Code introduces the possibility of using an administrative fine instead of a penal sanction, thereby “decriminalizing” a part of penal social law. According to the Government, it is preferable to resort to administrative fines or a civil sanction rather than to lengthy judicial proceedings, which seems to concur with the concerns raised by the CSC.

In this regard, the Committee once again encourages the Government to continue providing information on the impact of this reform on the level of application and compliance with legal provisions on working conditions and the protection of workers. It invites the Government to provide information on the number and type of offences reported, as well as the measures ordered and the penalties (administrative and penal) handed down and the cases referred by labour inspectors in the field of working conditions and the protection of workers (including wages, hours of work and occupational safety and health etc.).

The Committee would be grateful if the Government would indicate the measures taken to ensure a better follow-up by labour inspectors of cases referred to the criminal courts and draws attention, in this context, to its general observation of 2007 on effective cooperation between the labour inspection and the justice system.

Articles 20 and 21. Consolidated annual report on labour inspection activities. The Committee notes that the various inspection services publish a report on their respective websites but that, in all cases, some of the information required under Article 21(e), (f) and (g) is missing, such as statistics of the violations committed and penalties imposed, industrial accidents and occupational diseases. The Committee encourages the Government to take the necessary measures to ensure that the annual inspection reports include the information provided for under Article 21(e), (f) and (g) and are published in such a way that they give an overview of the functioning of the labour inspection system.