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Cross-border Labor Inspection: Insights from Technical Visit in Belgium

Explore the outcomes and challenges discussed during a technical visit to Belgium in 2010, covering topics such as labor inspection methods, cross-border control, and the Posting of Workers Directive. Gain insights into penalties for non-compliance, administrative fines, mutual assistance agreements, and the role of various stakeholders in ensuring fair labor practices. Delve into solutions proposed for enhancing cross-border labor regulation and combating social dumping. Discover firsthand experiences shared by experts and authorities in the field.

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Cross-border Labor Inspection: Insights from Technical Visit in Belgium

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  1. CIBELES – Technical visit Belgium 23/24 .09. 2010 • SPAIN: • Mr. Paramo Montero Pablo project leader (actually working for F-2, the Unit DG Employment headed by Mr Silva – EU COMM) • Mr Fernández : (takes the project over) • Mr Velázquez • Mr Villalobos • GERMANY : Mr Rainer Hellbach • BELGIUM: • OSH inspection:Mr. Tousseyn Paul, Van Damme Karel, Guy Denuit • Social labour inspection:Mr. Vanden Broeck Philippe , Willems Hilaire • Service of administrative fines: Mr.Van Damme Jackie , Beliën Marc • Ministry of justice: Mrs. Descamps Marie-Hélène, Cloosen Nathalie • Public Labour Prosecutor, president of the LP association: Mr. MeirsschautDany • Social Fraud Information and Investigation Service : Mrs. ROMAIN Nathalie • Department of Social Law Ghent University : Mrs Tineke Van Buynder & Mr. Dirk Gillis, Phd Researchers  

  2. CIBELES – Technical visit Belgium 23/24 .09. 2010 • Agenda • Short presentation of the project and its objectives (Spanish delegation) • Outcome of the visit of the Spanish delegation to the European Commission (21 september) (Spanish delegation) • Posting of workers: survey of the problem in Belgium; statistic data, inspections methods, Limosa registering (prior declaration) and data related to enquiries, • Presentation of KSS (Knowledge sharing system) • State of play of IMI (Internal Market information exhange system) • Answers on the questionnaire: Discussions & opinions of relevant stakeholders; Public labour prosecutor, Leading authority for imposing administrative fines, representatives of Ministry of justice and Labour Inspectors • Personal data – experience of e-gov Crossroad bank of social security and electronic penal report • Experiences of the LI network for crossborder control and role of SPOC’s (posting directive 96/71) • Summarizing, proposals and solutions

  3. CONDUCTED INVESTIGATIONSOSH 2008 (all employers)

  4. CONDUCTED INVESTIGATIONS Foreign employers by the special “social labour inspection” network 2007 2008 2009 2010 (15/9) 1126 1172 1183 1031 Intensive & time assuming in-depth controls with special methodology

  5. NUMBER OF PENAL REPORTS TO LABOUR PROSECUTOR - Foreign employers only Only 30% of the infringements (in OSH even less!) are subject of a penal report for prosecution (the rest = solved by conciliation, warnings, corrrections, advice) Only a “handfull” of administrative or penal fines per year are paid spontaniously by foreign employers (nearly never “executed”)….

  6. Posting agencies & go-betweens& temporary work agencies the biggest encoured problems! • Sometimes in disguise (as subcontractor) • do need a licence for posting hired staff in Belgium direct to client • Labour inspectorate in need of information: country of origin • High-risk for fraude, labour accidents, social dumping & unfair competetion • Inspectorate keeps a tracklist for some neighbour countries (via SPOC’s° • Bogus self-employed

  7. 1 = execution of the contract in Belgium 2 = official contractor/ employer (only post adress inUK= fiction, Cy lead by Dutch people) 3 = Dutch Cy specialised in “recruting & posting people”= go-between 4 = German “sister” Cy of the Dutch one (lead by the same Dutch people) , or other subcontractor for Nr. 2 (the “real” contractor) 5 = Poland: recruited workers, in reality working for Nr. 4, but with UK labour contract with Nr. 2 Some of them only officially residing in Poland , but but practically living AND WORKING in Belgium for prolongued + uninterrupted periods. Example 1 3 5 2 4

  8. Outcome of the technical visit to Belgium • Convention 2000 – mutual assistance : (transposed by belgian law of 9.12.2004) : not applicable on Administrative fines / only criminal proceedings • Framework directive: not transposed yet (draft law ) = problematic/negative! • Infringements within the scope of FD? • Meaning of “decision” ? Impsed administrative fines can be taken into appeal to the labourt court (which is not a “criminal court”) – administrative fines: not applicable in Belgium • Dataprotection: • a) only first pillar applicable (Convention 108 dd 1981 & Dir. 95/46/EC ) • b) Council Framework decision 2008/977/JHA (pure criminal matters): not applicable • c) solution: communication and use of exchanged information possible thanks to explicite article 8 labour inspection law (1972)

  9. EU – expert committee Posting of workers – directive 96/71 – 25.10.2010 • (cross-border) enforcement issues and encountered problems – summary of the replies to the questionnaire • How is non compliance with the obligations resulting from the Posting of Workers Directive sanctioned in your Member State? Are the sanctions imposed of an administrative or penal character, or both? • Member States applying sanctions primarily of a penal character: MT, SI, PL • Member States applying sanctions primarily of an administrative character: AT, DE, DK, EE, LT, NL, PT, SE, SK • Both types exist: CZ, CY, EL, FI, FR, HU, IT, LV, PT, SE , BE • b) Which fines can be imposed under the respective sanction regime applicable? Please indicate also the level of the fines/sanctions that can be imposed. • The level of fines varies considerably from Member State to Member States according to the type and seriousness, recurrence of the non-compliance, but also on the quality of the transgressor (being a natural or a legal person). In general administrative fines are the majority, however, but these are often accompanied by penal sanctions (fines or imprisonment punishments).

  10. EU – expert committee Posting of workers – directive 96/71 – 25.10.2010 (cross-border) enforcement issues and encountered problems – summary of the replies to the questionnaire c) Have systems or instruments been established with the objective of preventing non-compliance with the Posting of Workers Directive? If so, please specify. In many Member States there are no specific instruments or systems beside the normal sanction system established for preventing non-compliance. The most common measures regarded as preventive are the following: – information (campaigns, brochures etc.) on the applicable rules and rights of the posted workers, – fines – prior declaration system – exclusion from public procurement in case of non-compliance – joint liability rules – publication obligations (of transgressors, applied sanction or of rules)

  11. EU – expert committee Posting of workers – directive 96/71 – 25.10.2010 (cross-border) enforcement issues and encountered problems – summary of the replies to the questionnaire What other measures are available in cases of non compliance with the obligations resulting from the Posting of Workers Directive? If so, please specify. The civil liability and the possibility of enforcement of rights before civil courts were the most often mentioned other measures. Furthermore, not just the posted worker but also labour inspectors and other bodies, such as trade unions, public prosecutors have the right to claim the worker's rights or initiate proceedings before the competent courts.

  12. EU – expert committee Posting of workers – directive 96/71 – 25.10.2010 (cross-border) enforcement issues and encountered problems – summary of the replies to the questionnaire Has the application of Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial led to the identification of specific issues or problems? If so, please specify. The majority of the Member States who replied have not reported specific problems YET. This can be due to the fact that the implementing rules of the Framework Decision are not yet in place, thus not applied in some Member States. It seems from the replies that fewer problems exist re the penal type financial penalties, but considerably more with the recovery and cross-border enforcement of administrative fines. The further reported problems mainly relate to the not-yet-implementation of the Framework Decision in certain countries and to the lack of criminal jurisdiction before labour courts within the meaning of the Framework Decision as well as language problems.

  13. EU – expert committee Posting of workers – directive 96/71 – 25.10.2010 • (cross-border) enforcement issues and encountered problems – summary of the replies to the questionnaire • 2 main issues called upon by Belgium • The question arises whether the criminal and administrative fines of social criminal law (droit pénal social) fall within the scope of this Framework Decision and the future Belgian transposing law. • Specifically, whether all violations of the social criminal law (for which administrative or penal fine can be imposed) fall under article 39 offenses for which other States may not make any reservations (Article 5 1. of the Framework Decision). Otherwise reciprocity is required. • Especially : offences established by the issuing State and serving the purpose of implementing obligations arising from instruments adopted under the EC Treaty or under Title VI of the EU Treaty" (last indent of Article 5 1. )= Posting directive? But to which extent? • OSH is in the “hard core” of obligations foreseen in Dir. 96/71

  14. EU – expert committee Posting of workers – directive 96/71 – 25.10.2010 (cross-border) enforcement issues and encountered problems – summary of the replies to the questionnaire 2. The second issue is related to what is understood under "decision". Pursuant to Article 1 a) ii) of the Framework Decision, ""decision" shall mean a final decision requiring a financial penalty to be paid by a natural or legal person where the decision was made by an authority of the issuing State other than a court in respect of a criminal offence under the law of the issuing State, provided that the person concerned has had an opportunity to have the case tried by a court having jurisdiction in particular in criminal matters". However, the Law of June 30, 1971 relating to administrative fines currently provides that the employer may appeal to the Labour Court that has no jurisdiction in criminal matters

  15. EU – expert committee Posting of workers – directive 96/71 – 25.10.2010 (cross-border) enforcement issues and encountered problems – summary of the replies to the questionnaire Have bilateral contacts or agreements been established in order to tackle lacunas acknowledged in the cross-border enforcement? If so, please specify and indicate to what extend these have been (more) efficient. The majority of the Member States who replied have bilateral contacts, i.e. agreements with other Member States, with the exception of CY, DK, FI, HU, IT, MT and SE. Those Member States who established bilateral agreements consider them a useful tool in solving cross-border cases. The scope of these agreements is mainly administrative cooperation between inspection services, which often encompasses exchange of information, sharing best practices. In some cases also joint inspections take place.

  16. EU – expert committee Posting of workers – directive 96/71 – 25.10.2010 (cross-border) enforcement issues and encountered problems Presentation by DG JLS on the Framework decision - Ms. Adriana MIEKINA The 2008 implementation report showed numerous misunderstandings and non-conformity with the FD. Although the transposition deadline already expired in 2007, still 8 transpositions (BE, BG, DE, EL, IT, IE, SE and SK) were lacking. The Commission is working on a possible recast (impact assessment was being carried out) because of substance and procedural reasons. It would possibly be in a form of a directive now and involved the EP and jurisdiction of ECJ. The FD is based on the principle of mutual recognition, namely that the accurateness and legality of the decision had to be recognised as well as be enforced as it was the decision of the Member State concerned (no means to challenge the decision on substance). It applied to all offences in relation to which fines could be imposed, but to define these offenses depended on the national law. The dual criminality test was abolished re 39 offences The Commission recalled that the scope of the application was limited to criminal fines and covered administrative fines only when they could be appealed before criminal court.

  17. EU – expert committee Posting of workers – directive 96/71 – 25.10.2010 (cross-border) enforcement issues and encountered problems Presentation by DG JLS on the Framework decision - Ms. Adriana MIEKINA In principle the framework decision applied to criminal penalties with limited list of grounds for refusal (e.g. possibility not to recognise penalty lower than 70 euro). The Commission considered that remuneration issues fell rather under Regulation 44/2002 as those were civil matters but a fine imposed in the view of not paying remuneration could be covered The Commission reminded that it were the Member States who decided in principle what was criminal and how to qualify the nature of the decisions.

  18. C0-OPERATION AND INFORMATION TOOLS /PLATFORMS AND INSTRUMENTS for enhanced (cross-border) enforcement • KSS • IMI • European anti-fraude network (feasability study) for undeclared work • Belgian exemple • e.o.

  19. KSS Knowledge sharing for OSH • http://www.circa.europa.eu/ • ACCESS TO THE SLIC-LINES SITE • 1 access for each member-state: • - email address (kss.coordinator@..or ksscoordinator@..) • - user ID • - password • - author rights • access management to be organized by each member-state • - security • - appropriate use EUROPEAN COMMISSION Employment, Social Affairs and Equal Opportunities DG Rights, Working Conditions, Adaptation to Change Health, safety and hygiene at work

  20. ACCESS TO THE SLIC-LINES SITE (2) • trained coodinator • properly informed deputy coordinator • continuity of the function • principle of vigilance EUROPEAN COMMISSION Employment, Social Affairs and Equal Opportunities DG Rights, Working Conditions, Adaptation to Change Health, safety and hygiene at work

  21. TYPES OF COMMUNICATION • !!! CAUTION !!! • If Identifiable data • = recognition of a person, product or company • Then • Only domains and categories authorized by SLIC (Lyon 12/2008) • Ranking: « Limited » • Tick the corresponding box on the form/template EUROPEAN COMMISSION Employment, Social Affairs and Equal Opportunities DG Rights, Working Conditions, Adaptation to Change Health, safety and hygiene at work

  22. Internal Market Information (IMI) system • = enhancement of the administrative cooperation between Member States authorities for the application of • Directive of services 2006 • Professional qualifications (& diplomas) directive • In the future also: communication platform for authorities competent for posted workers (96/71)

  23. How IMI could support the information exchange about the posting of workers? (PROJECT IN PROGRESS)- SIMULATION

  24. EXAMPLE: Possible request concerning the employer Other requests could handle the posting activity itself, the posted worker etc.

  25. IMI “DECISION” 15 09 2010 • Working Party on Social Questions, on 15 September 2010 • 1. Do you agree with the main conclusions and recommendations (endorsed by the Expert Committee on Posting of Workers at its meeting 28th June 2010), in particular with respect to the following: • the future information exchange system should be an open and sufficiently flexible system to address the different needs of the various national administrative systems; • the identification of competent authorities to be registered; • For Belgium: a centralised system with internal forwarding (the latter outside the system) = 1 centralised contact point (via 1 e-mail adress) = the back-office : liaison office as well as the labour inspectorate • the future information exchange system should equally be used for the access to information (via links to web pages containing relevant information)?

  26. IMI “DECISION” 15 09 2010 • Do you agree that a specific module of the IMI system is the most appropriate to be used within the area covered by the Posting of Workers Directive having examined the expected cost and benefits related to such use? No ICT costs for MS! • 3. Do you agree that a pilot covering all Member States should be useful, preferably starting in the beginning of 2011 after having received appropriate training? Decision: testing spring 2011 and launching last quarter of 2011! Training on the Commission budget (starting spring 2011)! • 4. Do you agree that a review of the experiences with the use of the specific module of the IMI system should take place via the Expert Committee on Posting of Workers and the Council Working Group on Social Questions? • THE END RESULT: positive: • The test/pilot project for all MS may be developed (2011) • answering is not “legal mandatory” (but EU Comm watches closely…) • IMI is safe as privacy concerns (in accordance to EU directive)

  27. IMI “DECISION” 15 09 2010 Set of questions to be included in IMI • Related to the worker • Related to the posting company • Related tot the posting itself • Related to the core conditions (Article 3 (1) minimum wages, labour time etc, conditions of hiring of workers, . • SPECIFIC: OSH: • Did the worker concerned receive medical examination before the posting in your Member State? (yes/no/free text) • Did the worker concerned receive health and safety training before the posting in your Member State? (yes/no/free text) • [Did the worker concerned receive medical examination in the frame of health surveillance at work before the posting in your Member State? (drop down or free text).] • If so please specify the risk (free text or drop down)

  28. The Belgian social actor’s network In this spider web of the social security network, all actor’s d-bases are crosslinked – LI also have acces!

  29. SOCIAL SECURITY PORTAL WEBSITE for citizens, employers & labour inspectors & other professionals

  30. GENESIS COMMUNICATION PLATFORM BETWEEN INSPECTORS inspector • Labour inspectors have acces to each other’s files • Starting from this platform also direct acces to: • crossroadbank social security • crossroadbank of undertakings • home office (registers of natural persons) • limosa (prior declaration of foreign workers – etc…)

  31. http://www.limosa.be/ (manadatory prior declaration for postes workers , trainees & self-employed) – what is it? - How to do?

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