Proposition 50K2032

Projet de loi portant protection des conseillers en prévention.

General information ¶

Submitted by

Groen Open Vld Vooruit PS | SP Ecolo MR Verhofstadt Ⅰ

Submission date

Sept. 24, 2002

Official page

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Status

Adopted

Requirement

Simple

Subjects

work occupational safety

Voting ¶

Voted to adopt

Groen Ecolo PS | SP Open Vld MR

Abstained from voting

CD&V LE N-VA FN VB

Party dissidents ¶

• Ferdy Willems (N-VA) voted to adopt.
• Richard Fournaux (MR) abstained from voting.

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Discussion ¶

Nov. 6, 2002 | Plenary session (Chamber of representatives)

Full source

Mr. Speaker, Mrs. Minister, colleagues, I apologize for not being able to attend the committee meeting, but I have read the report of colleague Delizée with even greater interest. To my surprise, I found that few comments from the majority were made, let alone that would have been pointed out on the difficulties in the implementation of the heavily disputed law on protection against violence, harassment and unwanted sexual behavior at work. In this regard, very few trouble points were addressed.

I repeat once again that the Mobbing Act created a rightful attention to the problem of harassment at work, but that we have already pointed out a number of difficulties for us when dealing with that law in the plenary session, namely the external approach, the reverse burden of evidence, the recruitment of psychologists as prevention advisors and not the occupational physician already working in that framework, the additional costs that all this entails, the administrative burden, the excessive number of protected workers with all possible consequences within a company and, last but not least, the increasing jurisprudence that would result in the fulfillment of that law.

Now we are so far. The law on the protection of prevention advisors now requires that those prevention advisors would have the necessary legal protection to be able to perform their tasks in full independence. On the other hand, all types of advisors should receive the same type of protection. On its own, nothing can be done except to fully endorse this goal.

My first observation is that this law again creates a number of protected workers. It has been statistically proven that in some companies with more than 100 employees the number of protectors increases to more than 80%. In a smaller company with 50 + 1 employees, the number of protected employees rises to 60%. Mrs. Minister, you may not know that, but it has been put black on white on paper by employer organisations. We are therefore with a ⁇ large number of protected workers in an enterprise, which has a negative impact on employment, because those enterprises will no longer be inclined to continue to grow, given the increasing pressure of protection. I would like to emphasize that consultation between employees and employers is also necessary in a company. This must be encouraged. However, when the consultation becomes too much, it can be frustrating and anti-economic.

Next, I would like to note that the employer can only dismiss a prevention adviser or remove him from his position for reasons that are separate from his independence and competence. This is a very complicated procedure, according to the law. Employers must inform the appointed prevention advisors of the intention and the reason for dismissal or removal from the position. The employer must then seek advice from the Committee on Prevention at Work, or, in the absence of such advice within the company, from the trade union representative, or, in the absence of such advice, from the employee himself. If they give a negative opinion or no advice at all, the employer may not dismiss or remove the prevention adviser from his position before seeking advice on this matter from the social inspection and then the labour court to seek a decision. When I spoke of jurisprudence, I mean that.

If the employer dismisses or removes the prevention adviser without following the procedure, he must pay that prevention adviser a compensation equal to two or three years of salary, depending on whether the prevention adviser has served less or more than fifteen years. I learn from the report that you herein refer to similar provisions in the law of 28 December 1977 on the protection of occupational physicians. That law, however, dates back to 1977 and in the meantime more and more of such protected workers are being made mandatory in a business context.

All these obligations complicate the operation of the business, especially in the small business, which has more than twenty employees to hire an internal prevention adviser. The relationship between employees will not improve on it and the jurisprudence will increase to a great extent, as predicted in the treatment of the bullying law. Often, the employer will be obliged to initiate a procedure before the labour court. Further remuneration during that period will also weigh on the company’s wage costs. For workers’ prevention advisors who do not dedicate their entire working time to prevention, it will be ⁇ difficult in the event of conflict to designate the correct time spent for prevention. As a result, a large legal uncertainty will be created.

Moreover, the bill puts the employer in a small company in a serious dilemma. The employer of SMEs is interested in the employment of a well-functioning prevention advisor, but that entrepreneur will be inclined to allow the prevention advisor to spend as little time as possible on prevention, in order to keep the possible protection compensation to be paid in case of dismissal or removal as low as possible.

All this creates great legal uncertainty. It also arouses many discussions around the essential tasks of prevention advisors. Employers’ organisations have reasonably opposed the enforcement of the bullying law. I think the existing legislation is sufficient to address this problem. Furthermore, the draft law on the protection of prevention advisors is too much forgotten and, by the way, an unnecessary matter.

Once again, the banks of the MR and the VLD remained remarkably silent. I wonder how long they stand for.

I see that a number of committees are still working. They let our room members work in other places.

Mr. Speaker, Mrs. Minister, colleagues, Mrs. Pieters, it may have been silent on the banks of the VLD, but we were present. Each of us will arrange our own agenda.

The present draft law aims to ensure that prevention advisors enjoy the necessary legal protection to operate independently and efficiently. It was clearly inspired by the Act for the Protection of Occupational Physicians, cited by Ms. Pieters. It also provides for a uniform procedure in the event that the agreement of the prevention advisors is terminated.

The first goal was necessary. After all, it may not be intended that prevention consultants in a company should be scared of their own shadow and of their bosses to just do what they are paid for, especially their job.

The question is just how far the legal protection should go. In the second objective, the employer’s guarantees ask whether a uniform contract termination procedure for all prevention advisors is so necessary. If so, should this procedure be conceived immediately, if necessary, to impose the strictest regulation on everyone? I would like to use this latter to formulate a general concern. This bill provides, like most other analogue ministerial drafts, a fairly extensive protection. The rights of one are also the duties of the other. In this case, it is the employer who is charged with a large number of additional duties. Their

It is not intended to defend only the employer’s interests, but we must still bear in mind that a tough regulation brings these people an additional burden. This is not only administrative, but also financial and also – as Ms. Pieters points out – with all procedures through the Labour Court. It is also true that employers still need to leave time after their final task to fulfill their original task with great meaning and commitment, in particular engaging in the provision of work.

The procedure for removing a prevention advisor is heavy and the damages are not ugly. Is it necessary, for example, in any case to allow compensation for damages up to two to three years of salary depending on the old age as determined in the draft?

The draft also stipulates that the employer must continue to reimburse the prevention advisor as long as the procedure is in progress, even if it turns out that the employer had it at the right end he did not have the possibility — this question was asked in the committee — to recover that money with retroactive effect.

It is obvious that in practice it will be very difficult to dismiss or dismiss prevention advisors from their positions. This does not mean that they do not deserve special protection — the nature of their job deserves that in fact — but the question remains whether these measures should be effective as they are set out in the draft law. Furthermore, the State Council points out in its opinion the possible, imaginary situation in which the prevention adviser would no longer enjoy the confidence of workers. What happens then? Can employees initiate a procedure through the employer? We do not know.

This bill should be considered as an extension of the bullying law already very unwillingly received by the business. Many entrepreneurs were disappointed because of the many additional obligations imposed by this law. Furthermore, the fears in employer threats for abuse are not out of the air. In general, the fact that this bill increases the number of workers with a ⁇ high level of protection is also evident. It is therefore not surprising if this trend would trigger a counter-motion among entrepreneurs. In the future, they will think twice before offering additional unlimited employment contracts to their employees.

Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, this is not the first time we say this. The VLD may find itself in the original goal of the bill, but would have wanted to see the concrete implementation less extensive. We hope, Mrs. Minister, that in the future, you will take our opinion into account in your next projects.

Here are some information elements. What are we talking about? Prevention counselors, that is, those men and women (psychologists, engineers, doctors) who take care of the quality of employment, the prevention of accidents at work, the fight against violence at work, the working conditions in the company. If some agree that the quality of employment is important, in this case it is necessary to assume the consequences, allowing professionals who manage this quality of employment for the benefit of companies and workers, to work and give advice in full independence. by

Keep in mind that these prevention advisors work either in internal prevention services or in external prevention services. All small ⁇ obviously have a contract with an external prevention service. The employer is no longer the SME, but the service itself. Thus, these rules no longer concern the company, they concern the service of prevention and protection at work. by

The existing arrangements for dismissal for serious reasons are ⁇ ined. It is always possible. So, if the counselor does something that is unacceptable, he can be fired for a serious reason. The procedure as provided in the project is no longer applicable. This is an exception to the principle set forth here. It is also important to clarify this. by

This project was also discussed with the social partners and the opinion was shared: some were entirely in favor and others asked a few questions. They questioned the possible increase in costs for companies. They were answered by the negative, they were reassured: there will be no increase in cost for companies. What about proportionality? They were answered by modifying the project and taking into account the work experience of prevention advisors. Are we not at risk of diverting towards a widespread protection of workers? Obviously, it was answered that no. What is being done here is a specific legislation, as it already exists for working doctors. You have already mentioned this, Mrs. De Block. I think it is necessary to put legislation back in its philosophy and in its modalities without thinking that it will suddenly and fundamentally change our social law. However, it is really important to be able to benefit from quality internal and external services that perform independent work.

I conclude by saying that in case of intervention before the labour court – when the prevention adviser does not agree with the dismissal – very short deadlines are provided in the bill as, in general, for protected workers. In particular, it is planned from the introduction of the file, a mediation; within three days, a notification of an order; in the month, the pleasures. The call time is actually shortened. It also took into account the balance between the parties, either between the employer and the workers.

Mr. Speaker, I want to make a very brief comment. I thought I had said very clearly in my presentation that from companies with more than twenty employees an internal prevention advisor should be engaged and that the smaller deal with an external prevention advisor. Their

Mrs. Minister, I thought that the whole debate around bullying and prevention advisors could be an occasion — as requested by the employer organisations — to discuss for a moment the number of protections within a company. When I just gave you the figures, those are sectors — I repeat it for a moment — that have more than 100 employees or 101 employees. It has 81 protected workers. That is incredible. That is 80.2 percent. If you have 50 plus 1 employees, you can have a maximum of 30 protected workers. That is 60%. Run a company in this constellation. When you say that this is not all so bad by jurisdiction, that that labour court can be engaged in a short period of time, that it must give an opinion within three days, that it should last no more than one month, then I want to invite you to places and see how in these circumstances you can keep your business — especially the small business — running in decent conditions without tensions among people. That is what I am concerned with. I am concerned, as Mrs. De Block said, with employment. That is one point. However, I am also concerned with delivering products and services in good working conditions.

Mrs. Creyf’s figures are obviously surprising. I suppose the examples she cited are those of companies that employ a huge number of pregnant women.

I do not think that in the graphic sector more women are pregnant than in other sectors.

... ... I don’t know where you’re going to look for that.