Labour Inspection Convention, 1947 (No. 81) - Belgium (Ratification: 1957)

Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

In order to provide a comprehensive view of the issues relating to the application of ratified Conventions on labour inspection, the Committee considers it appropriate to examine Convention No. 81 (labour inspection) and Convention No. 129 (labour inspection in agriculture) in a single comment.

The Committee notes the observations of the Confederation of Christian Trade Unions (CSC), the General Confederation of Liberal Trade Unions of Belgium (CGSLB) and the General Labour Federation of Belgium (FGTB), received on 1 September 2022.

Article 3(1) and (2) of Convention No. 81 and Article 6(1) and (2) of Convention No. 129. Measures taken with regard to workers in an irregular situation. The Committee notes the Government’s indication, in reply to its previous comment concerning the rights accorded to workers in an irregular situation, that in 2017 a factsheet on the payment of wages for illegally employed workers was drawn up, aimed at facilitating the work of labour inspectors at the Directorate for Labour Legislation Enforcement (DG-CLS). The Government also indicates that in September 2021, in the context of the “Action Plan on Seasonal Workers” produced by the European Labour Authority (ELA), a number of enterprises employing seasonal workers were the subject of controls by various inspection services, including the DG-CLS labour inspectorate. In the context of these controls in the “green sectors” (agriculture, horticulture and agri-food), the Government indicates that a number of violations were recorded concerning seasonal workers from third countries, particularly non-payment of the minimum wage and non-observance of conditions of work and anti-COVID-19 measures. The Committee also notes that the CSC, CGSLB and FGTB indicate in their observations that, further to a case of trafficking in persons for economic exploitation which occurred at an enterprise at the port of Antwerp in July 2022, a parliamentary sitting was devoted to this matter in August 2022. According to the trade unions, the Government pledged at this sitting to further strengthen the inspection services. The unions also note the need to give particular attention to abuses connected with the posting of workers who are nationals of third countries, particularly concerning the payment of wages, the right to receive information, the actual existence of a prior employment relationship and the payment of social security contributions in the country of origin. The Committee notes that the Government’s report indicates the number of violations recorded in the employment of foreign workers and the number of related infringement reports issued by labour inspectors. The Committee requests the Government to provide information on action taken by labour inspectors in cases where, in the performance of their duties, they detect violations of the legal provisions relating to conditions of work and protection of the wages of migrant workers, including those in an irregular situation. The Committee also requests the Government to clarify how inspectors ensure that these workers are actually accorded their statutory rights. In this regard, the Committee also requests the Government to collect and send information on the outcome of judicial proceedings resulting from the investigations opened further to the action of the labour inspectors.

Articles 3(1)(a), 10, 13 and 16 of Convention No. 81 and Articles 6(1)(a), 14, 18 and 21 of Convention No. 129. Labour inspection staff. Adequate frequency and thoroughness of inspection visits. The Committee notes the Government’s indications that, as from 1 April 2022, the structure of the DG-CLS labour inspectorate has been modified and the former districts regrouped into eight regional directorates (four in the Region of Flanders, three in the Region of Wallonia, including for the German-speaking Community, and one in the Region of Brussels-Capital), with a head office in each provincial capital. The Committee notes that, according to the information provided by the Government, the number of inspectors of the Directorate-General for the Monitoring of Occupational Welfare (DG-CBE) increased between 2018 and 2021, from 122 to 135, but it also notes that this number represents a decrease in relation to the 176 inspectors registered in 2014. The Committee also notes that the Government’s report does not contain any information on the number of inspectors at the DG-CLS. According to the observations of the CSC, CGSLB and FGTB, the social partners are calling for a progressive increase in inspection capacities. In this regard, the unions refer to the recent decisions taken in the context of the 2022 budget for capacity-building for the labour inspection services, and also to the government agreement of 30 September 2020, which provides that the number of labour inspectors will be progressively brought into line with the standards recommended by the ILO. The Committee further notes that in their observations the unions emphasize the importance of strengthening collaboration between the federal and regional inspection services. The Committee requests the Government to provide information on the number of labour inspectors at the DG-CLS and the DG-CBE and to indicate their territorial distribution under the new structure. It also requests the Government to provide information on any plan to reinforce the labour inspectorate and to recruit new staff, so that workplaces are inspected as often and as thoroughly as is necessary to ensure the effective application of the relevant legal provisions, in accordance with Article 16 of Convention No. 81 and Article 21 of Convention No. 129. The Committee also requests the Government to provide information on the collaboration measures established between the central and regional directorates of the labour inspectorate.

Articles 20 and 21 of Convention No. 81 and Articles 26 and 27 of Convention No. 129. Preparation, publication and transmission of the annual report. The Committee notes that the Government, in its report and the annexes thereto, supplies information on the application of the Conventions, particularly on: the number of staff at the DG-CBE; the number of inspections conducted by the DG-CBE and the DG-CLS; the number and type of violations recorded, including distribution by economic sector, and the remedial action taken against these violations; and statistics on occupational accidents and diseases in commerce and agriculture. The Committee notes that the last report on the activities of the DG-CLS published on the website of the Federal Public Service (SPF) for Employment, Labour and Social Cooperation dates from 2018. The Committee urges the Government to take steps to ensure that the annual inspection reports are drafted and published in such a way that they give an overview of the functioning of the labour inspection system and that they contain information on each of the subjects specified in Article 21 (a)–(g) of Convention No. 81 and Article 27 of Convention No. 129.

Direct Request (CEACR) - adopted 2015, published 105th ILC session (2016)

The Committee notes the information provided by the Government in its report, in reply to its previous request concerning Articles 17 and 18 of the Convention on the legal proceedings and the effective application of sufficiently dissuasive penalties.

Article 3(1) and (2) of the Convention. Measures taken with regard to workers in an irregular situation. In its previous comments, the Committee requested the Government to provide further information on measures taken to ensure that workers in an irregular situation benefit from the same protection in respect of their working conditions as workers in a regular situation. The Committee notes the Government’s indication in its report that the measures provided for in the Act of 11 February 2013, in conformity with the Directive 2009/52/EC of the European Parliament and of the Council of 18 June 2009, strengthen the obligations of employers and improve the rights of third-country nationals who are residing illegally. The Committee notes the difficulties emphasized by the Government regarding proof of benefits when an intervention is requested of the General Directorate of Supervision of Social Laws (CLS) to enforce payment of outstanding salaries to undocumented workers in cases where such workers are no longer employed or are residing illegally. It also notes that a study will be carried out on the feasibility of expanding a procedure to suspend a deportation order for workers in an irregular situation to give them time to claim wages due. The Committee requests the Government to continue to provide information on efforts made to enable foreign workers in an irregular situation to claim their rights for work effectively carried out, including when they are subject to a deportation order, and on the role of the labour inspectors in this regard.

Articles 3(1)(a), 10, 13, and 16. Labour inspection staff. Adequate frequency and thoroughness of inspection visits. In its previous comments, the Committee noted the observations of the Confederation of Christian Trade Unions (CSC) concerning a severe lack of staff in the only inspection service responsible for the enforcement of occupational safety and health (OSH) legislation. It asked the Government to indicate the measures taken to alleviate the staff shortage. According to the Government, the social inspectorate obtained authorization at the end of 2014 to recruit 11 social inspectors but, given the unfavourable age pyramid and the economic crisis, it has not been possible to systematically replace retired inspectors. Considerable efforts have been made in the field of prevention and protection at work through the adoption of a multidisciplinary approach with prevention advisors highly qualified in the areas of health, safety and psychosocial risks. In relation with the inspectors of the Welfare Control Directorate (CBE), who are exclusively responsible for enforcing the legislation in this area, the Government indicates that three inspectors were recruited in 2012 and ten in 2013. The Committee notes that, according to the information in the Government’s report, the number of CBE inspectors fell from 190 in 2012 to 176 in 2014. The Committee requests the Government to ensure that measures are taken to strengthen labour inspection staff, particularly the staff responsible for supervision of OSH conditions, so that inspection visits are carried out with adequate frequency and thoroughness to ensure the effective application of the legal provisions, in conformity with Article 16 of the Convention. It also asks the Government to provide updated information on the number, nature and geographical distribution of the establishments subject to labour inspection, and the workers engaged therein, as well as on the number and distribution of labour inspectors responsible for the enforcement of the general working conditions and those responsible for OSH.

Articles 20 and 21. Preparation, publication and transmission of the annual report to the Office. The Committee once again requests the Government to see to it that steps are taken to ensure that the annual inspection reports are drafted and published in such a way that they give an overview of the functioning of the labour inspection system and that they contain information on each of the subjects in (a)–(g) of Article 21 of the Convention.

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

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.

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Articles 3(1)(a) and (2) and 5 of the Convention. Extension of the areas of legislation covered by the inspection services. For several years the Government has been emphasizing that it gives priority to the combat of cross-border fraud among the objectives of the labour inspectorate in the sphere of action against illegal work and social fraud. The Committee had asked the Government in this framework to clarify whether non-declaration by the worker was an offence for which the worker incurred liability, to indicate the manner in which the same protection was secured to foreign workers having irregular status in terms of the right of residence as to other workers who were employed in breach of regulations, and to clarify the possible role of the inspection services in this respect.

The Government indicates that the Framework Act of 23 December 2009, which amended the Act of 30 June 1971 concerning administrative fines, introduces an additional administrative fine for which the worker himself is liable, in the event that the latter exercises an activity, as an employee, self-employed person or official, that is not declared by his employer alongside another (declared) primary activity. Nevertheless, the application of this penalty requires prior establishment of the fact, via a separate report, that the employer knowingly employed, for the provision of an undeclared activity, the worker whose primary activity is declared and requires the employer to be reported on account of this infringement. It also declares that, in the event of the illegal occupation of foreign workers, it is customary practice for the labour inspectorate to draw up a report against the employer, in view of the particular seriousness of this type of infringement. Furthermore, if the employer does not comply with the obligation to declare the occupation of the worker (whether foreign or not) to the National Social Security Office (DIMONA declaration), the labour inspectorate of the Federal Public Service (SPF) for social security systematically proceeds with regularization of the situation and, if the employer does not make the payments, he becomes liable to criminal or administrative and civil penalties. The inspection services also examine the conditions of work of foreign workers in relation to the regulations concerning action against human trafficking and against economic exploitation, with a view to providing protection. Foreign workers in an irregular situation which, in the opinion of the labour inspectorate, may be one involving economic exploitation, are subject to specific provisions relating to their residence status in the country and may be entitled to social assistance and other social benefits.

In its previous comments the Committee had noted the establishment of a Labour Research and Information Department (SIRS), with regard to action against illegal work and social fraud. The SIRS consists of two bodies, namely, the General Assembly of the Partners and the Federal Guidance Office, which contain representatives of the Attorney-General’s Office and the four inspection services, and also of other public institutions, and representatives of the employers and workers.

The text which founded the SIRS has been modified and integrated into the Act of 6 June 2010 establishing the Social Penal Code. The SIRS is a department which depends on the Ministers of Labour, Social Affairs, Justice, the Minister responsible for self-employed workers and the State Secretary responsible for the coordination of action against fraud. Its mission consists of coordinating at federal level the activities of the various inspection services entrusted with the combat of social fraud and illegal work. The Government indicates that the activities of the inspection services in the context of SIRS account for a maximum of 25 per cent of their overall work.

The Committee recalls that, as indicated in the 2006 General Survey on labour inspection, paragraphs 76–78, the labour inspection systems established in accordance with the Convention should perform the labour inspection functions which are defined in Article 3(1) with the main objective of enforcing the legal provisions relating to conditions of work and the protection of workers. The Committee has emphasized that the primary duty of labour inspectors is to protect workers and not to enforce immigration law. Efforts to control the use of migrant workers in an irregular situation often require the mobilization of considerable resources in terms of staff, time and material resources, which inspectors can only provide to the detriment of their primary duties. The Committee also underlines the fact that, with the exception of a few countries, only the employer is held accountable for illegal employment as such, with the workers involved in principle being seen as victims. The fact that the labour inspectorate in general has the power to enter establishments without prior authorization allows it more easily than other institutions to put an end to abusive working conditions of which foreign workers in an irregular situation are often the victim, and to ensure that workers benefit from recognized rights. In these circumstances, the function of verifying the legality of employment should 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. This objective can only be met if the workers covered are convinced that the primary task of the inspectorate is to enforce the legal provisions relating to conditions of work and protection of workers.

Noting that, according to the Government, the labour inspection activities performed in the framework of the SIRS represent a quarter of its overall work, the Committee requests the Government to provide information on the impact of these activities on the enforcement of the legal provisions relating to conditions of work and the protection of workers (Article 3(1)(a)). The Government is requested to communicate, in particular, information on the number of infringements detected, the legal provisions concerned and the measures taken as well as the sanctions imposed. Also noting that, under section 2 of the Social Penal Code, a strategic plan and an operational plan must be drawn up each year in the context of action against illegal work and social fraud, the Committee would be grateful if the Government would provide information on the content of these plans.

Also drawing the Government’s attention to the fact that the cooperation provided for in Article 5(a) of the Convention is designed to strengthen the means for enforcing the legal provisions relating to conditions of work and the protection of workers (Articles 2 and 3(1)), the Committee requests the Government to state the manner in which the labour inspectorate controls the discharge of the obligations of employers (such as payment of wages and other benefits with respect to work that has been done) with regard to foreign workers in a situation which is irregular but does not come under the heading of human trafficking or evident exploitation. It asks the Government to explain the procedure followed in these cases and the role of labour inspectors in this procedure, especially in cases where these workers are facing expulsion from the country pursuant to the immigration laws.

With regard to its previous comments concerning the adoption of the new code of conduct for labour inspectors in the context of action against illegal work, the Committee notes that under section 61 of the Act of 6 June 2010 establishing the Social Penal Code, the King shall establish the code of conduct for labour inspectors further to an opinion from SIRS. The Committee requests the Government to send the ILO a copy of the text of the code of conduct for labour inspectors in the context of action against illegal work, once it has been adopted.

Communication of the judicial action taken on cases referred by labour inspectors. Further to its previous comments, the Committee notes with interest that the labour inspectorate systematically receives information in writing on the action taken with regard to infringements reported by the service and that the GINAA and e PV IT projects relating to the creation of a database on the action taken on infringements and to improved collaboration between the labour inspectorate and the judicial authorities, would probably be operational during 2011. The Committee requests the Government to send information on the progress made in this matter and the results on the functioning of the labour inspection system.

Articles 17 and 18. Progressive decriminalization of violations of certain provisions of the labour legislation. With reference to its previous comments on this issue, the Committee notes that the Social Penal Code introduces amendments to criminal legislation on labour matters, such as the reorganization of the scale of penalties, systematic use of administrative fines and less recourse to judicial proceedings. The Committee requests the Government to provide information on the impact of this reform on the development of the level of adherence to the legal provisions concerning the conditions of work and the protection of workers.

Articles 20 and 21. Content of the annual labour inspection report. With reference to its general observation of 2010 on the importance of annual inspection reports, the Committee draws the Government’s attention to the guidance given by the Labour Inspection Recommendation, 1947 (No. 81), as regards the way to present and disaggregate the information contained in this report. The Committee requests the Government to take the necessary measures to ensure that annual inspection reports are written and published in such a way as to enable an overview of the functioning of the labour inspection system. The Committee also requests the Government to ensure that these reports contain information on all the subjects covered by Article 21(a)–(g) of the Convention.

Observation (CEACR) - adopted 2009, published 99th ILC session (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.

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

Also referring to its observation, the Committee notes that, among the objectives of the labour inspectorate for 2006, cross-boundary fraud must take priority. Each region has determined two sectors of activity on which to specifically focus controls. These are sectors in which controls conducted are likely to lead to significant regularization with respect to social security contributions. The choice of sectors has been made in collaboration with the National Social Security Office.

The Committee notes that the system for combating trafficking in human beings rests 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 hand, the need to combat the networks effectively. In this context, the victims of trafficking who agree to collaborate with the judicial authorities and go to a special reception centre are eligible for a specific residence status. In May 2001, the social inspection services and the social legislation inspection services conducted systematic joint controls with regard to social legislation (construction, renovation, clothing manufacture, exotic restaurants, agri-horticulture, etc.). Since then, annual plans for the sectors to be monitored have been drawn up (monthly activities with police, labour auditor, etc.). During these investigations, inspectors have not only ensured that regulations governing conditions of work for male and female workers have been observed; they have also gathered useful information for detecting possible networks involved in the trafficking of human beings.

The Committee notes that the diagram showing the procedure for assisting victims under the policy towards trafficking in human beings indicates that, where persons in an irregular situation are intercepted by a service, if it emerges that they are not the victims of trafficking, they are subject to dismissal, an order to leave the national territory, and a compulsory residence order or a residence ban. The Committee would be grateful if the Government would indicate the manner in which it is ensured that, firstly, labour inspection controls targeting illegal or unauthorized employment do not jeopardize the inspection of conditions of work (wages, working hours, leave, etc.) and, secondly, that persons intercepted at a workplace where they are in an irregular situation can recover their social rights before being expelled.

Entry into private homes. The Committee notes that, according to the sources available to the ILO, the question of the free right of entry of labour inspectors in workplaces liable to inspection is currently under discussion within the legislative bodies. It reiterates that, according to Article 12, paragraph 1, of the Convention, inspectors must be empowered to enter freely and without previous notice at any hour of the day or night any workplace liable to inspection and to enter by day any premises which they may have reasonable cause to believe to be liable to inspection. It would be grateful if the Government would supply information with regard to the relevant legal provisions and their application in practice, and also with regard to any developments resulting from the legislative discussions in this respect.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes the Government’s report and the legislative, practical and statistical information on the functioning of the labour inspection system.

1.  Labour inspection methods aimed at promoting a culture of compliance with the law. According to the Government, the priority areas of labour inspection are occupational safety and health. Furthermore, the regulations concerning welfare at work constitute the basis for inspection activity, and the main instrument for contributing to a better social policy is the improvement of these regulations. The Committee notes with interest the announcement of new inspection methods aimed at fostering compliance with the regulations concerning welfare at work. According to the Government, many employers and enterprises have a positive attitude towards these regulations. In the view of the Government, it is entirely normal and justifiable for public money to be set aside for the provision of staff and funding to assist employers in the proper observance of the regulations, if they are not properly informed of their obligations and do not have a clear understanding of the specific implications of the new regulations. Inspection activities are adapted in the light of indicators such as complaints, serious industrial accidents, occupational diseases and requests for mediation. The initial reaction to these indicators being an attitude of positive encouragement, it is nevertheless considered essential, without discouraging willing employers, to adopt a radical approach towards clearly recalcitrant parties, using appropriate instruments such as the imposition of work stoppages combined with the reporting of contraventions, for example during controls on construction sites and sites where asbestos is being removed.

With regard to recalcitrant employers, the Government’s opinion is that only intensive and sustained inspection can change their attitudes and that, although it is logical that the capacity of the inspectorate increases as unwillingness to cooperate increases, it is also morally unjustifiable that this additional capacity should be paid for by the community. Offenders should consequently be made to pay for additional inspections resulting from their unsocial attitude. With this in mind, a first and possibly a second inspection on the same regulations would be free of charge. From the third inspection onwards, the offending party would have to pay for each inspection which it caused, in proportion to the cost. The application of a method combining injunctions and the payment of a deposit where the inspector fears that the employer will not comply with agreements aimed at rectifying the infringement is also worthy of serious consideration. This deposit, which would be refunded when compliance with the injunction was confirmed, would be confiscated in the event of non-compliance and transferred to the insurers, with a view to building up funds so that enterprises which make serious efforts at prevention can be rewarded. The additional administrative burden generated by this inspection method can be limited, according to the Government, through collaboration with the industrial accidents fund or the occupational diseases fund. The Committee would be grateful if the Government would provide a copy of any legislative text or regulation adopted with a view to the implementation of the new methods of inspection outlined above, together with figures on their impact in practice.

2. Article 5(b) of the Convention. Collaboration between the inspection services and employers for the protection of workers from subcontracting enterprises.  The Committee notes with interest that measures have been adopted via a “prime contractors/subcontractors” safety and health charter, which has been drawn up by a number of employers’ organizations and the aim of which is to achieve optimum integration of safety and health aspects for all subcontracting work through collaboration between the prime contractor and the subcontractor. The principles of prevention, integration, involvement, cooperation, communication and coordination are all applied in the charter. A “contractors’ work” inspection index, the basis of which is chapter IV of the Act of 4 August 1996 on the welfare of workers during the performance of their work, is used to evaluate the commitment of employers to the welfare of external workers who work in their premises, as well as that of the direct employers of these workers. Applications to join this charter are sent to the Department for the Monitoring of Industrial Welfare, which certifies that the applicant enterprise has not been the subject, in the six months proceeding the application, of a definitive conviction, an administrative fine or a work stoppage order relating to circumstances occurring during the previous three years which has not been cancelled by the labour inspectorate. This certificate entitles the enterprise to register its name on the website http://www.chartedesecurite.be, thus enhancing its image through its positioning as a decent, reliable enterprise investing in the safety and health of workers. It can use the charter logo on its correspondence, bid documents, etc., and it is less liable to visits from the labour inspectorate, since the latter is aware of its efforts in the areas of safety and health at work. The result is fewer industrial accidents and a reduction in insurance premiums.

3. Article 5(a). Cooperation between the labour inspection services and other organizations with a view to better application of the legislation. The Committee notes with interest that the inspection services cooperate with other supervisory bodies which have competence in fields other than welfare at work, following an equally radical approach to violations of a less serious nature or committed in other sectors. Such cooperation consists of attracting the attention of such bodies with a view to identify attitudes that systematically seek to evade the law. Social fraud, for example, is a good indicator of general fraud.

The Committee would be grateful if the Government would continue to supply information on developments in methods relating to the functioning of the labour inspection system and indicate the impact of their implementation, in statistical terms, on the general situation regarding conditions of work and the protection of workers while engaged in their work.

The Committee is sending a request concerning another point directly to the Government.

Direct Request (CEACR) - adopted 1992, published 79th ILC session (1992)

Article 20 of the Convention. Further to its previous comments, the Committee notes the reports on labour inspection and medical labour inspection and on inspection in mines provided by the Government. It hopes that the Government will in future provide within the time-limits established by the Convention all due reports on labour inspection services.

Articles 10 and 16. The Committee notes that the strength of various inspection services seems to be reduced even below that established under the budget. The Committee hopes that the necessary measures will be taken to strengthen these services so as to ensure that inspections will be as frequent as necessary to be effective.

Direct Request (CEACR) - adopted 1990, published 77th ILC session (1990)

Article 20 of the Convention. The Committee notes the reports on the activities of the mines administration services for 1987 and the occupational medicine inspection services for 1988. It hopes that the reports of the other services will reach the ILO in the near future.