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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.

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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.

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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.

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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.

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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.