Observation (CEACR) - adoptée 2011, publiée 101ème session CIT (2012)

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

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.