The Social Criminal Code updated and modified

The law of 29 February 2016 updating and modifying the Social Criminal Code and containing miscellaneous provisions on Social Criminal Law (Belgian Official Gazette 21 April 2016) modifies the Social Criminal Code. The aim is actualising the Social Criminal Code, taking into account the evolutions since the adoption of the Code. The modifications entered into force on 1 May 2016.

The introduction of the Social Criminal Code has been treated in an other article on our website that you can read by clicking here.  

1. The evolution of Social Criminal Law : from a number of separate laws to the Social Criminal updated and modified Code

Before the introduction of the Social Criminal Code the stipulations imposing criminal sanctions in case of infringements of employment law and social security law, were scattered across various laws.

By means of introducing the Social Criminal Code, the legislator has grouped the administrative and criminal punishment in one single code consisting of two parts, namely:
(i) "Book 1" which deals with prevention, establishment and punishment of violations in general; and
(ii) "Book 2" which deals with the infringements and their punishment in particular, that is all infringements of social law and the sanctions for each of the infringements.

2. Modification and actualisation of the Social Criminal Code

The modification and actualisation of the Social Criminal Code was necessary in order to correct a number of imperfections as well as to adapt it to new and modified provisions, which have been introduced in the continuously evolving social law since the preparation of the draft of the Social Criminal Code.

The changes implemented by the law of 29 February 2016, related to Book 1 as well as Book 2 of the Social Criminal Code.

2.1 Book 1 of the Social Criminal Code

The main changes related to Book 1 of the Social Criminal Code are the following:

• The policy regarding prevention and supervision at work has been revised;
• The composition of the General Counsel of Partners of the Social Intelligence and Investigation Service (SIOD – SIRS) is expanded
  1) by adding representatives of various administrations involved in the battle against social fraud;
  2) by enhancing the representation of the governments and institutions having authority regarding employment policies of foreign workers; and
  3) by expanding the representation of the most representative employers and employees organisations;
• The guarantees with regard to the supervision and the capacity of officer of judicial police have been revised;
• The public prosecutors and the examining magistrates have access to the database of the e-PV, and this without any specific authorization;
• The self-employed person shall be treated in the same way as the employer, his agent or his appointee regarding the coercive measures taken by a social inspector.

2.2 Book 2 of the Social Criminal Code

The main changes to Book 2 of the Social Criminal Code focus on five themes:

• The Social Criminal Code has been actualised by implementing new criminalisations. 
  It concerns
  • Infractions of social law provisions that were erroneously not included in the original draft of the Social Criminal Code; and
  • Infractions of social law provisions that have entered into force after the preparation of that original draft of the Social Criminal Code.
• The Social Criminal Code has been adapted to modifications or to the abolition of the relevant stipulations of social laws;
• Some forms of criminalisation that had been included in the Social Criminal Code by mistake have been removed;
• The terms "agent or appointee" are abolished with respect to criminal provisions, which impose a level 1 sanction. This was necessary because an administrative fine can only be imposed on the employer and not on his agent or appointee, even if the violation was committed by the agent or the appointee;
• The structure of the Social Criminal Code has been improved, several material errors (typos, vocabulary and translation mistakes) have been corrected and the terminology of the Social Criminal Code has been improved.

Below we give a brief overview of some of the most important changes to Book 2 of the Social Criminal Code :

(i) Modifications regarding the wellbeing at work

The legislation regarding the wellbeing at work has been thoroughly modified in 2014.

Since 2014, the employer has to comply with the rules regarding the prevention of psychological risks at work, which could harm the psychic health condition of the employee (by way of examples: violence, harassment at work, undesired sexual behaviour, stress, burn-out, and others).

In doing so, the employer needs to use a risk analysis, which is then included in the global prevention plan of the company.

Before the changes of the Social Criminal Code, the employer who did not comply with the obligations regarding this matter, could only be held criminally liable under article 128 of the Social Criminal Code. For the remainder, the Social Criminal Code did not mention provisions on psychosocial risks.

As from now, the Social Criminal Code provides for the criminalisation in case of violation of a number obligations relating to psychosocial risks

Moreover, the coordinates of the prevention advisor, and as the case may be the person of confidence, who is specialised in the psychosocial aspects at work, need to be explicitly mentioned in the work regulations.

The new law also sanctions the violations regarding the wellbeing at work by the external prevention services. From now on, the external prevention services can directly be held criminally liable on the basis of the Social Criminal Code.

(ii) Temporary work

During the period in which the temporary worker is employed by the user, the latter is, as of now, placed on an equal footing as the employer with regard to compliance with the provisions on working time, legal holidays, Sunday rest, maternity protection and all other measures regarding health and safety at work.

Therefore, in the case of violations of these protective stipulations, the user himself shall from now on be criminally liable.

(iii) Smoking at work

The employer needs to guarantee the right to dispose of smoking free working areas by prohibiting smoking in working areas and areas of social facilities. He also needs to inform third parties and remove all elements that could instigate smoking. Under certain conditions, a smoking area can be provided for.

The violations of these provisions are henceforth penalised with a level 3 sanction. When causing health damage or a workaccident, they are penalised with a level 4 sanction.

(iv) Immediate declaration of employment

The modified Social Criminal Code introduces additional sanctions for violations of the obligations of the employer regarding the immediate declaration of employment (DIMONA).

The additional sanctions are related to both infractions of the general DIMONA for the ordinary employees, as well as to violations of the obligations relating to the DIMONA-declaration for occasional workers in the farming sector, the horticulture and the “horeca” sector.

Violations of the DIMONA-rules are penalised with level 4 sanctions.

A new sanction is introduced for employees who "knowing and wilfully" perform work well knowing that this labour has not been declared. This violation is penalised with a level 1 sanction.

(v) Occasional labour

As of 1 May 2016, the Social Criminal Code provides a new level 2 sanction for employers of the farming sector, horticulture, the “horeca” sector and the temporary work sector who employ occasional labourers and who do not comply with the rules regarding the delivery and record-keeping of an occasional form.

The occasional form is a formal obligation for employers who benefit from beneficial social security rates with regard to the employment during a number of days per year of these employees.