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Labour Inspection (Agriculture) Convention, 1969 (No. 129) - Belgium (RATIFICATION: 1997)

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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.

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The Committee notes the information provided by the Government in its report in reply to its request concerning Article 6(1)(a) and (3) of the Convention on the enforcement of the legal provisions relating to conditions of work and the monitoring of illegal employment. In this regard, it also refers to its comment in relation to Article 3(1) and (2) of the Labour Inspection Convention, 1947 (No. 81).

Articles 26 and 27. Annual report. The Committee once again requests the Government to ensure that the central inspection authority respects its obligation to publish and transmit to the ILO, in accordance with Article 26, either as a separate report or as part of its general annual report, a report on the functioning of labour inspection in agriculture, containing the information required under (a)–(g) of Article 27. It also refers, in this regard, to its comment relating to Articles 20 and 21 of Convention No. 81.

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The Committee refers to its comments on the Labour Inspection Convention, 1947 (No. 81), in so far as they are concerned with the application of the present Convention.

Article 6(1)(a) and (3) of the Convention. Enforcement of the legal provisions relating to conditions of work and control of illegal employment. The Committee notes from the statistics that there has been a reduction in the number of labour inspection staff, decreasing from 299 in 2010 (32 inspectors and 267 labour controllers) to 272 in 2012 (31 inspectors and 241 labour controllers). It also notes that the number of inspection visits carried out in agriculture and horticulture decreased from 1,629 in 2008–10 to 1,330 in 2010–12. The Committee notes that most inspection visits carried out are in the context of action against undeclared work, with 1,223 out of a total of 1,629 visits in 2008–10 and 930 out of a total of 1,330 visits in 2010–12. The Committee requests the Government to indicate the measures taken or contemplated to ensure that there are sufficient labour inspectors to undertake inspections with the necessary frequency to ensure the effective discharge of their duties. With reference to its previous comments, the Committee again requests the Government to provide information on the impact of enforcement activities targeting violations in the area of undeclared work on the inspection workload and the scope and effectiveness of the enforcement of legal provisions relating to conditions of work and the protection of workers, including undocumented workers. In particular, the Committee would be grateful if the Government would indicate the manner in which the labour inspectorate ensures the discharge of employers’ obligations (such as the payment of wages and other benefits owed) with regard to undocumented workers in an employment relationship, in cases where such workers are subject to being taken back to the frontier or to expulsion pursuant to the immigration laws.

Articles 26 and 27. Publication of information on labour inspection in agriculture. While noting the information provided by the Government in its report on labour inspection activities and their results, the Committee again requests the Government to take the necessary steps to ensure the publication – as a separate report or as a separate section of the general report of the labour inspectorate – of an annual report on the work of the inspection services in agriculture, containing the information required by Article 27(a)–(g).

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Referring to its comments under Labour Inspection Convention, 1947 (No. 81), the Committee would like to draw the Government’s attention to the following issues.

Article 6(1)(a) and (3) of the Convention. Enforcement of the legal provisions relating to conditions of work and combating illegal employment. In its previous comments the Committee asked the Government to indicate the legal action taken as a result of the infringements identified relating to undeclared work against the employers concerned and the practical consequences of the identification of such offences for workers who are not registered with the social security system and who are in an illegal residence situation.

The Government indicates in its report that, for the labour inspectorate (responsible for the enforcement of labour legislation), combating undeclared work comes under the tasks assigned in accordance with Article 6(1)(a) of the Convention, since regular declaration by the employer of workers who he employs gives the latter entitlement to the full range of social security rights. During inspections targeting illegal or undeclared work and also those undertaken to combat the trafficking of persons, the inspectorate takes action not only to identify offences relating to irregular or undeclared employment but also to enforce the legal provisions relating to conditions of work, both in terms of workers’ health and safety and in terms of the labour regulations (pay scales applicable to the sector of activity, observance of hours of work, public holidays, etc.). The Government specifies that the inspection services responsible for monitoring social security provisions ensure systematically that the work done by workers found in a given workplace, even in the event of employment in breach of the regulations, is duly and completely declared to the National Social Security Office (ONSS), so as to ensure that these workers enjoy the related social benefits. When an irregularity is observed, the inspectors proceed to regularize the situation by sending a specific form to the ONSS, on the basis of which the ONSS can calculate and claim from the employer the amount of social security contributions which have been unpaid as a result of the undeclared employment and thus ensure that the workers concerned enjoy the social rights which are their due as a result of their employment.

It results from the statistics sent by the Government that, of 1,557 inspections carried out in agriculture between June 2008 and May 2010, 1,223 took place in the context of combating undeclared work. In this context, inspections focused on the employment of foreign workers, part-time work and social documentation. In most cases the inspectorate draws up an infringement report, mainly with regard to the employment of foreign workers and social documentation, and reports the facts to the judicial authorities.

With regard to the protection of pay, hours of work and the application of collective agreements, the Committee notes that during the 2008–10 period only 254 out of 1,557 inspections were concerned with these matters. According to the Government, the figures relating to the reports of violations show that the labour inspectorate achieves compliance with the regulations in a large number of cases.

The Committee requests the Government to provide information on the impact of enforcement activities targeting violations coming under the heading of undeclared work on the level of activity and the scope and effectiveness of the enforcement of legal provisions relating to conditions of work, and the protection of workers including workers who are illegally resident.

In particular, the Committee would be grateful if the Government would indicate the manner in which the labour inspectorate ensures the discharge of employers’ obligations (such as the payment of wages and other benefits owed) with regard to foreign workers in an employment relationship who are in an illegal residence situation, in cases where such workers are facing expulsion from the country pursuant to immigration laws.

Articles 26 and 27. Publication of information on labour inspection in agriculture. While noting the information provided by the Government in its report on the activities of the labour inspection and their results, the Committee would be grateful if the Government would take the necessary measures for the publication, in a separate part of the general report of the social inspection, of an annual report on the work of the inspection services in agriculture, containing information required by items (a)–(g) of Article 27.

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The Committee notes the Government’s detailed report for the period ending May 2008, as well as the annual reports of the federal public social security service (social security inspection) for 2005 and 2006. It also notes the statistical data from the Social Security Inspection Service relating to agricultural enterprises, provided by the Government in its 2008 report on the Labour Inspection Convention, 1947 (No. 81). The numerous legislative texts received by the ILO on 15 October 2009 will be examined together with the Government’s next report.

Article 6, paragraphs 1(a) and 3, of the Convention. Principal functions of the labour inspectorate as defined by the Convention and the compatibility of additional functions which may entrusted to inspectors. According to the information provided by the Government, between June 2006 and May 2008, the activities of the inspection services to combat undeclared work were intensified and the inspection services are increasingly involved in the procedures established for this purpose in collaboration with other State services. Further to its previous direct request, the Committee wishes to remind the Government that the primary function of the labour inspection system in agriculture should be, as established by Article 6(1)(a), of the Convention, to secure the enforcement of the legal provisions relating to conditions of work and the protection of workers while engaged in their work. The monitoring of illegal employment and undeclared work would therefore appear to be an additional function and, as such, it should therefore be ensured, in accordance with Article 6(3), it is not such as to interfere with the effective discharge of the primary duties, as defined in paragraph 1, and that it does not prejudice in any way the authority and impartiality which are necessary to inspectors in their relations with employers and workers. Noting that the Government has not provided the information requested in its previous direct request (2007) on the manner in which it is ensured that supervisory activities targeting offences arising from undeclared work do not prejudice the effectiveness and scope of the enforcement by labour inspectors of legal provisions relating to conditions of work (health, safety, hours of work, wages, etc.) and the protection of workers while engaged in their work (social security, right of association, in particular) and the living standards of workers who are illegally resident. It would be grateful in particular if it would indicate the legal action taken as a result of the violations identified relating to undeclared work against the employers concerned and the practical consequences of the identification of such offences for workers who are not registered with the social security system and who are illegally resident.

Article 6, paragraphs 1(a) and (b) and 2. Fields of competence of labour inspectors in relation to horticultural enterprises (seasonal workers). The Committee also notes that the Government has not provided the information requested on the impact of the continued updating of the census of casual workers (DIMONA) in terms of the identification of horticultural enterprises requiring specific action by the labour inspectorate. According to the Government, the objective of the immediate notification of employment is for an electronic link to be developed between employers and the authorities, which should lighten the administrative workload, identify workers accurately and rapidly and establish a clear connection between the worker and the employer. As well as enabling the employer to view the result of the registration on the social security web site and to consult the specific electronic personnel register of the National Social Security Office, the implementation of the new legislation provides the labour inspectorate with an effective means of supervising compliance with the legal provisions relating to daily hours of work of each casual worker hired and the corresponding social security contributions. The Committee would be grateful if the Government would indicate the progress achieved in this respect and, where appropriate, in relation to other conditions of work, such as occupational safety and health, wages, the conditions of accommodation of seasonal horticultural workers, since the entry into force of the Royal Order of 14 October 2005.

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The Committee notes the Government’s report for the period ending 31 May 2006 replying to its previous comments and the information on the recent legislative measures, as well as the tables on the labour inspectorate’s activities and findings in 2004, presented separately for the various sectors of activity and according to the size of the enterprise.

1. Article 6, paragraphs 1(a) and (b) and 2, of the Convention. Census of agricultural and horticultural workers and targeting of inspection actions. The Committee notes with interest that horticultural employers are now required to submit an immediate notification of employment for casual workers, who make up a major category of the workforce in this sector. The explanations provided by the Government show that the objective of the immediate notification of employment (DIMONA) is for an electronic link to be developed with the authorities, which should lighten the administrative workload, identify workers accurately and quickly and establish a clear link between the worker and the employer. As well as enabling the employer to view the result of its declaration on the social security web portal and to consult its specific electronic staff file in the register of the National Social Security Office, the implementation of the new legislation offers the labour inspectorate a means of effective supervision of compliance with the legal provisions on the daily hours of work of each casual worker engaged and the corresponding social security contributions. From the Committee’s point of view, the continuous updating of the casual workforce register should also facilitate the identification of enterprises and activities requiring specific action by the inspectorate, either for information purposes, particularly with regard to occupational health and safety, or with a view to supervising the application of the legislation on general conditions of work and the accommodation conditions of the workers concerned. The Committee would be grateful if the Government would provide specific information on the progress achieved in this area since the entry into force of the Royal Order of 14 October 2005.

2. Article 6, paragraph 3. Compatibility of certain additional duties entrusted to inspectors in relation to the primary duties defined by the Convention. The Committee notes with interest the statistics provided by the Government on the supervision carried out by the inspection services responsible for social law, presented by type of investigation. It notes that such investigations are conducted either in response to complaints and requests (from workers, employers or their organizations or third parties, including requests for information made by other public services) or by order of the Government, the Minister, the central administration of the Social Law Supervision Service, the Social Inspector Head of Directorate or at the initiative of the technical expert him or herself. The Government indicates that, from June 2004 to May 2006, out of the 2,565 investigations in agricultural and horticultural enterprises, 1,300 were conducted in the context of combating illegal employment. The Committee would be grateful if the Government would indicate the manner in which it is ensured that supervision targeting this violation does not compromise the effectiveness and scope of the supervision carried out by inspectors of the provisions relating to the working and living conditions of illegal workers. It would be grateful if the Government would also indicate the consequences of the operations to control illegal work in terms of penalties imposed on employers who have committed a violation and in terms of protection of the workers concerned.

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The Committee takes note of the Government’s report and of the reports of the labour legislation inspection service (1999, 2000, 2001 and 2002) and the medical labour inspectorate (2002).

With reference to its previous comments, the Committee notes that although the Government’s report is general, it contains some information on the labour inspectorate’s activities in the agricultural sector. The Committee notes that employment continues to account for a large share of these activities and that the information on working conditions and protection of workers in the exercise of their occupation are not extensive enough to allow an assessment of the extent to which the Convention is applied. The annual activity reports of the medical labour inspectorate allow no distinction to be drawn regarding the operation of occupational safety and health inspection in the agricultural sector. The Committee therefore requests the Government once again to take measures to ensure that, in accordance with the Convention, information on labour inspection in agricultural enterprises dealing with the subjects set out in Article 27(a) to (g) of the Convention are published either in a separate annual report or as part of a general annual report, and that a copy thereof is sent to the Office by the central inspection authority, as required by Article 26.

The Committee notes that according to the report of the labour legislation inspection service, in the ongoing modernization of social security, development of an electronic social risk declaration has continued under the new working party set up at the end of 2002, to develop a common platform for the various inspection services. The Committee therefore trusts that the implementation of this project will facilitate proper application of the abovementioned Articles of the Convention.

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The Committee takes note of the Government’s report and of the documents supplied with it. It has also noted the information contained in the annual report supplied with the report on the application of Convention No. 81 to which the Government refers. The Committee notes that the inspection activities, during the period covered by these reports, were concerned mainly with illegal employment. With reference to Article 6, paragraph 1(a), of the Convention, the Committee requests the Government to provide information on the activities of the labour inspection authorities in the other areas of legislation that come within their remit.

Recalling also that an annual report, in the form of a separate report or part of the Government’s annual general report on the activities of the agricultural inspection services concerning the subjects defined in subparagraphs (a) to (g) of Article 27, should be published and communicated by the central authority to the ILO within the period prescribed in Article 26, the Committee requests the Government to ensure that effect is given to these provisions of the Convention.