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Supervision of social legislation

Responsibilities 

One of 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. This 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.

Most of these provisions are not only intended to protect Belgian workers but also posted workers holding an A1 certificate who come to Belgium to work here temporarily. These protective measures concern the way in which work in Belgium can (or cannot) be organised by the employer (working hours, work on Sunday or public holidays, night work, wage/salary protection, etc.) and the conditions of remuneration and employment which have to be generally complied with by all employers in a sector (including foreign ones) in collective agreements (minimum wage scales, supplements, bonuses, benefits granted by sectorial social funds, etc.). A characteristic feature of all these provisions is that penalties can be imposed if they are not complied with. The penalties are in most cases penal measures or administrative fines. In most cases, a penalty can be imposed only on the employer and the investigations conducted by the labour inspectorate are therefore mainly focused on employers. In principle, penalties are never imposed on workers.

The Social Legislation Inspectorate also provides information and advice with regard to civil labour law (disputes between parties concerning individual employment contracts, maternity protection, collective agreements not declared generally binding, arrangements agreed at company level, etc.). If such a dispute is not settled between the parties after the inspectorate has acted as mediator, you may, also as a posted worker, and if you feel that your interests have been harmed, bring your case before a competent labour court in Belgium. You may appoint a representative to represent you in court or seek the assistance of a lawyer or a trade union.

How the inspectorate is organised

The Social Legislation Inspectorate has a management board and a number of external offices (directorates) in the Flemish Region, the Walloon Region, one for the German Community and one in the Brussels Capital Region). These external directorates have jurisdiction over a clearly defined territorial area. You may contact them for answers to your questions if the general information on this website does not help you with your specific problem or if you wish to lodge a complaint.

A complaint is always treated as confidential. The labour inspector is bound to secrecy. He may not inform the employer that an investigation is based on a (posted) worker's complaint. Unless you give your consent, your name may not be divulged to anyone except to his fellow labour inspectors or competent public departments directly involved in the investigation.

What the labour inspector may do in the performance of his duties

As part of their normal tasks and also on specific instructions, inspectors may carry out regular checks on construction sites and workplaces of the client, the main contractor or the foreign employer's client.

In these inspections, which involve the same checks as those on the employment of Belgian workers, the inspectors focus in particular on working conditions and the working environment. For this purpose, they may ask any questions necessary from any person present on the site and ask to be shown particular documents such as order forms, building contracts, attendance lists, overviews of work carried out, work permits, invoices, etc. The inspectors are also empowered to verify the identity of anyone present on the site and ask to be shown residence permits, A1 certificates and identity cards. If any documents containing social data or other data prescribed by law that are held on date carriers are not spontaneously presented to the inspectors, they may themselves search for them, copy them and seize them. The same applies to data carriers which may be searched for in a computer system (or network) at the workplace.

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, environment law, etc.

Following their initial findings, the inspectors will contact the employer or his representative or agent to obtain additional information concerning the employment of his workers and request particular social documents such as wage/salary statements or payslips (where appropriate, those used in the workers' country of origin).

Employers and their workers are obliged to cooperate in these investigations. 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.

The intention of the inspectors is first of all to ascertain whether the legislative provisions on the employment of posted workers, on a par with Belgian workers, is complied with. Is the mandatory minimum wage scale of the industrial sector being complied with? Are supplements and bonuses paid as provided for in the collective agreements? Does the employer pay the contributions to social funds where this is obligatory? Are the maximum permissible working time limits complied with? If not, are the derogations justified? Is overtime being paid at the statutory supplement rate of 50% (100% for Sundays and public holidays)? Are compensatory hours of rest being granted? Etc.

If the inspectors find that one or more of these conditions are not complied with, this amounts to one or several violations. The labour inspectors' findings have special value as evidence.

The inspectors' means of action and focal points in their investigations

The European Directive requires the authorities of the member states to verify the correct implementation of the key wage and employment conditions as referred to in Directive 96/71/EC on the posting of workers.

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 there 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 or administrative fines. 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. Instead of bringing a case to court, the labour inspection may also try to obtain these back payments on behalf of the commissioner or co-contractor (main contractor, subcontractor) (the so-called joint several liability).

Under another act, it is also possible for trade unions to bring such action on behalf of posted foreign workers without a prior request from these workers. Moreover, it has 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).

Additional information and complaints

 

 

 

FPS Employment, Labour and Social Dialogue