Labour inspection country profile: Belgium
The labour inspectorate in Belgium depends on the Federal Public Service Employment, Labour and Social Dialogue (FPS) Division and comprises several federal departments.
Labour Inspection directorates and their scope
The federal departments are divided as follows:
- two general directorates of the Federal Department (Ministry) of Employment, Labour and Social Consultation (abbreviated FOD WASO) which is responsible for supervision, in particular:
-supervision of social legislation, i.e. checks on the organisation of labour, remuneration and other employment conditions;
-supervision of welfare at work, i.e. verification of compliance with legislation on safety at work, health, ergonomics, hygiene at work and the psycho-social aspects of work.
- a number of other inspection services which come under the Federal Department of Social Security, the National Social Security Office and the National Employment Office. The first two focus mainly on the social security status of posted workers, while the latter is the inspectorate for the provisions on unemployment. There are also inspection services at regional and community level (Flemish Community, Brussels and Walloon Region) which mainly check work permits, temporary agencies and private employment agencies providing job placement services.
Laws that cover organization and function
- Art 87-90bis Law of 10 April 1971 on accidents at work
- Law of 16 November 1972 on labour inspection
- Ministerial Decree of 28 March 2003 on the organization and functioning of labour inspection
- Art 216-256 Law of 20 July 2006 which has actualized the labour inspection
Scope of Labour Inspection
As mentioned above, labour inspection in Belgium is divided into two main areas of competences: the control of social laws and the control of welfare at work.
The first directorate has particular responsibility for the enforcement of labour laws and social security legislation (hours of work, remuneration, leave and rest period ...), problems related to employment (hiring, restructuring...), the application of collective agreement (working conditions, status of the union delegation ...), industrial relations (social elections, protection of elected representatives of workers ...), individual employment relationship (laws on employment contracts). The main tasks of the Social Legislation Inspectorate is to provide information to employers and workers, give advice, reconcile and of course verify whether labour law and the various collective agreements are complied with. Such information is supplied to all the parties involved in an employment relationship: employers, workers, trade unions and those who carry out wage/salary administration on behalf of the employer.
The Welfare Control Directorate (CBE) mainly checks workers' welfare at the workplace. It covers a whole range of aspects concerning safety at work, health protection, psycho-social stress caused by work, ergonomics, hygiene at work, embellishment of the workplace, accidents at work and environmental measures taken by enterprise. The Welfare Control Inspectorate is organized along regional lines and works closely together with the network of prevention advisers and prevention services dealing with their workers' welfare.
The Social Legislation Inspectorate has a management board and a number of external offices (units) in the Flemish Region, the Walloon Region, one for the German Community and one in the Brussels Capital Region. There are 36 labour departments distributed in 22 regional labour units. Each region has its own labour inspection service with its social law competences. The three regional competences are: migrant workers, promoting employment aid and approval of part-time employment agencies. These external units have jurisdiction over a clearly defined territorial area.
Programming and communication
Since 2004, each region must prepare a regional action plan (plan d’action regional, PAR). The PAR is elaborated on annual basis by the director general of each regional labour unit in cooperation with others labour inspectorates. It defines priorities, objectives and provides guidelines policies and establishes the operational criteria for inspections.
The device used by inspectors in managing their tasks is the Organization Anti-fraud Social Services Inspectorate (OASIS). This system allows them to have access, in a short time, to a set of information from vital statistics, directories of employers, social security, registries. These instruments are essential for the labour inspectors to act against social security fraud.
The objectives of this system are to identify companies where targeted controls are justified and to conduct risk assessments.
Permanency of inspectors
According to the Ministerial Decree of 28 March 2003, labour inspectors are civil servants
Selection process, background required and training
The labour inspectors are recruited as civil servants by the federal HR department. Labour inspection positions are open to candidates who held a university degree in law, economic, social science, engineering or in medicine for the OSH inspectors. Their training lasts eighteen months including a stage on labour legislation (labour law, labour administrative law, social security law) and a final thesis. Labour inspectors follow a permanent training on relevant legislation and OSH related aspects.
Types of visits
The inspection visit has several origins. It can take place at the initiative of a complaint from a worker, workers’ organization or perform scheduled and unplanned inspections without any prior notification, during the day, night or weekends. The labour inspectors may seek assistance from the police. Inspections on large building sites are often conducted in cooperation with other inspection services.
All labour inspectors may exchange their investigation data with one another and communicate them to other public departments responsible for the implementation of labour law, social security law, tax law, etc.
A very important task of the labour inspectors is to provide information and advice to employers and workers regarding civil and labour legislation. These provisions are not intended to protect only Belgian workers but also foreign ones who work in Belgium. Information and advice are provided on the way in which work in Belgium can (or cannot) be organised by the employer (working hours, work on Sunday, public holidays, night work, wage/salary protection, etc.); the conditions of remuneration and employment which have to be generally complied with by all employers in a sector in collective agreements (minimum wage, bonuses, benefits, sector social funds, etc.).
The internal services of prevention and protection at work are required to prepare a monthly and an annual report of all accidents occurred in the year period. The statistical details of accidents are included in the annual reports of the Fund accidents.
When accident at work occurs, different measures could be taken. The body responsible for the prevention and protection at work has the duty to make a report for any accident which imply at least a four days of work incapacity. These records, are then forwarded to the Department for prevention and protection at work.
Occupational accidents with fatal outcome or permanent injuries must be immediately reported to the regional authority competent for control of welfare at workplace accompanied by a declaration of the employer. The declaration must contain, among others, the identification of victims, a description of where the accident occurred, its circumstances, the causes identified including all the immediate measure which could be taken in order to prevent this event to occurring again.
Employers and their workers are obliged to cooperate in the investigations carry out by the labour inspector during their visits. If inspectors encounter any active obstruction in their investigations, they may draw up a formal report on obstruction to inspection and transmit it to the public prosecution service. For such cases, heavy penalties may be imposed (minimum fines under penal law of €2500). Substantial administrative fines may also be imposed if the public prosecution service does not prosecute the persons concerned.
When inspectors encounter infringements (e.g. if the minimum wage has not been paid), their first concern is to rectify the illegal situation. To this end, they prefer to make use of their discretionary powers. Rather than informing the court of any infringements by drawing up a formal report, they may prefer to issue a warning to the employer and propose a deadline by which the wages due in arrears should be paid out (regularisation).
As proof of this regularisation, the inspectorate systematically asks for proof of payment and pay slips (e.g. those of the country of origin). In order to make sure that these additional wage payments do not evade the payment of social security contributions or tax in the country of origin, the inspectors will ask their counterparts abroad to verify whether these payments have actually been made and have been duly communicated to the competent authorities. For this purpose, arrangements have been agreed with labour inspectors of a number of other member states (including Poland, France, the Netherlands and Germany).
If the employer remains negligible and does not follow up the labour inspector's demand for regularisation or in cases of serious and/or repeated violations, a formal report is drawn up and transmitted to the public prosecution service.
This may lead to judicial prosecution, administrative fines and - a measure not to be underestimated -the striking-off (or refusal of registration) as a contractor in the building sector and allied fields. In the event of a refusal to follow up a call for regularisation, payment of the wages due in arrears can be enforced by the posted workers according to another procedure, e.g. by bringing a civil action in penal proceedings or directly by bringing the case before the civil labour court. Under a new act, it will soon be possible for trade unions to bring such action on behalf of posted foreign workers without a prior request from these workers. Moreover, it has recently been laid down that the public prosecution service can also take the initiative to claim wages in arrears on behalf of all the workers involved of an employer named in the report through proceedings before the labour court. More information on the magistrate of the public prosecution service who is competent in a particular area and a list of addresses of regional trade union organisations may be obtained from the inspectorate (see addresses above).
Belgium has an elaborated system of social dialogue at all levels (inter-professional, sector and enterprise) and in the different socio-economic fields (economic policy, social policy and occupational safety and health).
A national tripartite committee ensure the collaboration between the labour inspectorate and employers’ and workers’ organizations. Belgium's three principal trade union organizations are the Confederation of Catholic Labor Unions (CSC/ACV), the Belgian Socialist Confederation of Labor (FGTB/ABVV), and the Confederation of Liberal Labor Unions (CGSLB/ACLVB).
Belgium has ratified ILO Conventions No. 81 (Labour Inspection in Industry and Commerce) of 1947 and No. 129 (Labour Inspection in Agriculture) of 1969 respectively in 1957 and 1997.