Proposition 51K1610

Projet de loi modifiant diverses dispositions légales en matière de droit pénal social.

General information ¶

Submitted by

PS | SP MR Open Vld Vooruit Purple Ⅰ

Submission date

Feb. 15, 2005

Official page

Visit

Status

Adopted

Requirement

Simple

Subjects

labour tribunal civil procedure higher court public prosecutor's department judicial power social legislation criminal procedure criminal law criminal court

Voting ¶

Voted to adopt

Vooruit PS | SP Open Vld MR

Abstained from voting

CD&V Ecolo LE N-VA FN VB

Contact form ¶

Do you have a question or request regarding this proposition? Select the most appropriate option for your request and I will get back to you shortly.

Discussion ¶

June 15, 2006 | Plenary session (Chamber of representatives)

Full source

I refer to the written report.

I would like to sign up for the general discussion.

I note your name, Mr. Casaer. The following speakers have registered: Mrs Van der Auwera, Mr Wathelet, Mr Casaer.

Mrs Van der Auwera, you have the word.

Mr. Speaker, Mrs. Minister, colleagues, this draft, which introduces major changes to the Social Criminal Law and which is put to the vote today, has been discussed several times in the Justice Committee. Hearing was also held with the various actors of social criminal law. On the one hand, the draft aims to establish a specialized correctional chamber, both in the first instance and in the appeal, which only takes note of violations of social criminal law. On the other hand, an extended right of claim is granted to the labor auditor. From now on, he will therefore have the possibility to bring social criminal offences before a civil court and thus completely remove them from the criminal sphere.

When determining an infringement affecting all or part of the employees of an enterprise, the auditor will therefore have to make a choice between initiating a criminal action or a civil action. In the latter case, the criminal action would be invalid and no more administrative fine could be imposed. In other words, rather than prosecuting an employer for the purpose of imposing a penalty, a regularization is aimed at the benefit of all disadvantaged workers up to even former employees.

Both at the time of the discussion of this draft in the committee and today, we still ask ourselves a lot of questions about the content of the draft. These questions have not been answered adequately in the committee.

First, we ask ourselves the question of the opportunity of the further establishment of a new, specialized chamber at the correctional courts. In fact, there is already a de facto specialization within the correctional courts, in the sense that social law criminal cases are already dealt with by special chambers. Does this regulation, by the way, not affect the administration of the court, a competence of the chief of the corps? Should we not give the chief of the corps the freedom, ⁇ in smaller courts, to specialize or not specialize certain chambers in certain subjects? For example, why is there no room specialized in environmental matters?

We have also asked the Minister in a committee whether the fact that the judge or counselor must agree to sit in this specialized chamber does not have the effect that the law cannot be applied. What will the Minister do if, in the absence of candidates, the seat of this specialized chamber cannot be assembled?

By the way, I would like to point out here, by the way, that due to recent legislative changes, the Court of First Instance will have to be expanded with other chambers. Among other things, I think of a specialized chamber in criminal enforcement cases. Therefore, we ask ourselves how each and every one will go in his work in terms of organization. Does the Minister plan any framework expansion in this regard?

Next, I would like to refer again to the following issue that has been debated in the committee for a long time. The Supreme Court stated in its opinion on the draft that the draft actually deviates from the classical legal principle "le criminel tient le civil en état". According to the Supreme Court, it would be possible that the rights of the civil party would be violated by this new claim. Indeed, from the moment that the audit board has chosen to initiate a civil proceedings, the injured party is excluded from the possibility of appearing as a civil party before the investigation judge and, consequently, the injured employee will no longer be able to collect the necessary evidence to establish his civil claim and to establish his injury.

Those comments were also made during the hearing.

I would like to ask the Minister for some clarification as the exact relationship to my feelings in the committee has not yet been fully clarified.

It is also not yet clear to me exactly what statute that judgment is given on the basis of the civil claim will have. Apparently this will be arranged in a circular letter. Nevertheless, I would like to have some explanation on this.

Finally, the following thing. Originally, the text provided that the auditor should inform all interested persons, thus possibly all employees of a company, of the dispute before the Labour Court. Since this would ⁇ mean a heavy workload for the auditor in the case of a multinational company, this task was transferred to the employer through a government amendment. In fact, the amendment provided that the employer, at his own expense, had to notify the judgment to all the workers concerned by means of a registered letter.

We have strongly opposed this legislative amendment in the committee, as this would entail additional administrative burdens for many employers. Thanks to our group, the government amendment was softened, in the sense that the text today still imposes that obligation on the employers but that the notification can be made in any way, for example through a sticker.

I would like to ask you for some clarification, as I have just stated. For the rest I thank you.

Mr. Speaker, Mr. Minister, this soundly discussed project in the committee is based on two key elements: the specialized chambers at the level of correctional courts — an excellent initiative — and the creation of an office right of action before the labour courts in case of infringement of labour legislation. by

This is somehow an alternative in the head of the labor auditory, whether he diligents the criminal action before the correctional court, or he decides to diligent the civil action for the weakest social offences, thus eliminating the possibility of any criminal treatment of the file.

On this aspect, there are still certain questions, such as those raised in the committee, although a positive point is the fact of wanting certain offences to be the subject of a litigation at the civil level rather than not to be the subject of any litigation, the auditorate not daring to bring them before the criminal courts. First, again, we risk expanding the number of disputes before the labour court. Today, this is a deliberate risk given that previously these cases would not have been prosecuted unless they could be entrusted to a correctional court, too crowded or subject to too heavy procedures. Now the civil component will be chosen and it is well: judicial consequences will be brought to an offence of social level. This is rather positive, but it still constitutes an additional burden for the labour court.

Then, the collective debt settlement transferred, once again, a competence to the labour court, but a competence that can be important. by

Finally, there is the possible transfer of some magistrates currently in office near a labour court to the specialized chambers near a correctional court. by

These three aggregated elements — procedure, transfer of magistrates and collective settlement — will ensure that the number of cases before the Labour Court will be profoundly changed. Today, it seems to me that we still do not have this famous “werklastmeting”. I therefore truly hope that these two new competences and the transfers of magistrates to correctional courts will be clearly evaluated in order to study the usefulness of a possible adaptation of labour courts to the workload incurred.

The project also calls for the “civil action” section of the audit board. There has been a lot of discussion about the nature of this action. Is this action carried out in the name of the general interest or of a particular interest? What really is the nature of this action? It is sui generis, new and original. It is not that it is not good. But it is true that, from a practical point of view, one will have to carry out evaluations, see how to set it up, etc.

Then there is the question of the “double hat” of the listener. by

At the civil level, there will be an auditor against an employer; I imagine that will be so in most cases. Will they really be equal? The auditor sometimes has other skills, knowledge, ways or means of instructing and assembling a file than a lawyer or an employer. This may pose questions on the level of equality of weapons.

I come to the professional secrecy of the auditor who may have been brought to know a dispute with the same employer previously. The work in the committee has helped to resolve this issue correctly.

In what capacity does the auditor introduce the action? What is the nature of the action introduced? This is a fundamental question. In my opinion, there is no other answer than that which is to say that it is sui generis.

The [...]

It is sui generis. We are

Agree on this point. This is still questionable. There is a fear of the unknown, even if the intention is good. by

Questions were asked in the committee. But we were not always sure of the answer. Remember, I have addressed, at one point, the problem of a petition of an investigation judge through a worker who decides to seize the criminal by constituting a civil party while the auditorium has already diligented the civil action and that, doing so, there can no longer be a criminal action. In this case, the civil keeps the criminal state, which is neither tradition nor norm. This is what can be called sui generis. How will it ensure that the constitution of a civil party in the hands of an investigative judge is unacceptable? These are, in my opinion, good questions that, in practice, will require a number of reforms, especially in the mentalities and ways of addressing the cases. by

I come to the declaratory scope of the judgment. This aspect has long been discussed. In fact, the judgment is not enforceable in itself. We hope, however, that it will play its role; in other words, it will have to be important in the negotiations with the worker. I imagine that if there is a dispute between the worker and the employer, but that a judgment has been made following a diligent action by the audit board, during the negotiations, the worker will be put in a more favorable position than if that judgment had not been made.

However, it should be remembered that this judgment is not enforceable in itself. It is declaratory. We hope that it will ⁇ the goal by allowing for a better framework of negotiations.

The last element I wanted to emphasize is the fact of insisting — like the CNT — on the need for consistency and a uniform prioritization. Certain violations of social law should not be prosecuted in such a district before the criminal courts and in such another before the civil courts.

I insist on the necessity of this coherence and on the fact that, in the light of social criminal law, all employers and workers are treated equally. For this purpose, a treatment unit is indispensable. Therefore, when it is decided that the prosecution of such offences should no longer be carried out before the criminal courts but before the civil courts – otherwise it would not be done before the criminal courts; it is from time to time what is happening for the moment – I insist that this unity, this coherent view of the whole of this policy at the level of the various Auditors of the Kingdom.

We go into the unknown with this new procedure sui generis. I insist again; the labor burden must be assessed before the labour courts. It will also be necessary to evaluate the evolution of this procedure and, above all, to ensure consistency, a uniform assessment at the level of all the judicial districts of the Kingdom in view of this new policy, in view of the policy of the various auditors.

Mr. Speaker, Mrs. Deputy Prime Minister, colleagues, this is a part of a broader whole, which will later come on the table of the committee and the Chamber, namely the global package reform of the social criminal law. In fact, it is an advance. We will, of course, come back to the rest of the matter later.

Within the committee there was a large majority that approved the draft. Eleven people were in favour and there was one abstention. Our group is also positive about the bill. It contains, as colleagues have already stated, essentially two elements. First, it concerns the establishment of special chambers within the correctional court to deal with this matter. It is a somewhat specific subject, because it is a little horseback between, on the one hand, the criminal law and, on the other hand, the social law. Therefore, it is good that, in addition to specialized lawyers, sufficient specialization and know-how can be built in the magistrateship.

The second element of the draft, which also gives rise to the necessary discussion here, is that a labor auditor may submit or prosecute a civil claim on behalf of the employees, without actually taking over their interests entirely. It is important to note, however, that social criminal law never actually has the main purpose of prosecuting really serious criminal acts. On the contrary, it aims to ensure that if people commit certain violations of the social legislation, those violations are corrected, so that there can be no more negative consequences for workers in the future.

A second aspect is the observation of the High Council of Justice concerning the question whether the adagium "le criminel tient le civil en état" is not broken here. In my opinion — and I have already some experience in the matter — this is not a new element. In the case of administrative fines, it is already the case that the labor audit authority sets up the criminal prosecution before the file is forwarded to the FOD Work and Employment to decide whether or not an administrative fine should be imposed. In addition, there is all the aspect that the criminal prosecution expires before the file is forwarded.

The civil claim is indeed a novelty, something we are not so familiar with in our legal system.

Who knows, in the future this will find more passage in relation to what is called class action in consumer matters.

The most important thing, I think, is that there is a positive effect for the workers, that there is a result for the people who know they are in some way harmed by a violation of the social legislation. I think this can be achieved through this civil claim.

How is it at this moment? An employee who knows if the injured person is a victim of a particular social offence can first file a criminal complaint. However, the likelihood of persecution is not always equal. A second possibility is that the labor audit board decides to suspend and there is a possibility of administrative fines per employee for whom the infringement was committed. This can result in significant amounts. Ultimately, the employee has no benefit from an administrative fine.

What can he do? He can already individually bring a civil claim to the Labour Court. For example, if there is a breach of a barem set out in a CAO provision, if for example 100 employees say they have received insufficient wages based on one or another barem of a particular CAO, they can all go to the labour court and submit a summons, which then start 100 legal proceedings at once.

I think the solution that is pushed forward here is a better solution. In this case, the principle challenge is submitted by the labor audit board and can be followed by a principle declaratory judgment that then provides a basis from which all injured workers can subsequently draw their rights.

The National Labour Council also had few substantial comments on this draft. After our work, we have learned that the VBO had a number of concerns, including with regard to the cost of making the judgment known. This is reflected in the amendment already mentioned. This is a practical and pragmatic solution to all the questions posed.

The proof of the pudding is in the eating. Mr. Wathelet, it is clear that an evaluation will have to follow. However, I think this is a good evolution that can greatly support our group.

Ladies and gentlemen, I will be very brief.

I just come to the floor, because I have taken the word several times during the discussion of the present draft law relating to social criminal law. I would like to come back to the core of my speech.

When I was first confronted with the text, which was finally approved at the Council of Ministers of March 2004, I had some hesitation. In particular, I did not hesitate about the intention to try to ensure a better application of social law through the civil procedure, but rather about the description in the draft on how labour courts should decide in such matters, what they could decide and to what extent their decision was or was not challengable for all interested parties. This was not sufficiently clearly described.

It was therefore useful that we organized a number of hearings in the Committee on Justice and subsequently submitted the necessary amendments to clarify what it is about. Now we have a text that the practitioners can work with. Parliamentary work has therefore ⁇ and firmly contributed to the improvement of the text.

The next element I would like to talk about is the criticism which is heard from some angles, namely that in this matter we would impose quite heavy, administrative obligations on business, which would be a pity.

Criticism should also be nuanced in this area. When we make the comparison between the original text of the design and the situation in which we eventually ended up, the companies cannot complain about the burdens we impose on them.

What was the original version? Initially, it was stipulated that the Prosecutor’s Office should notify all interested parties that a procedure would be initiated, and that from the beginning. The logical consequence would then, of course, be that many would be interested and mixed in the procedure. It would be a very complicated procedure, with many parties and uncertainty about who claims which rights in the state of the procedure. This would also have caused a lot of costs for the business, even if it were only because it is much easier to bring a case between two or three parties to a good end than a case involving dozens of parties.

We have landed in a scenario where first a decision is made on whether a company may be convicted for non-compliance with the law. Only then has the convicted company the obligation to inform the employees concerned of the incident.

In the end, however, it is always about a company that at that moment has been proven to have gone wrong.

It is not at all an administrative obligation that is organized in a heavy way. It is not a registered letter as suggested at a particular moment. It is sufficient to inform all employees concerned in a simple way. I believe that in the final result the balance between the interests of the workers and the interests of the community and the bonafide companies that do respect the social law, on the one hand, and the interests of a company that might not have respected the law in good faith, or in some cases in bad faith, on the other hand, has been balanced by the parliamentary work. Therefore, the design, as it now predicts, can count on our support.

I would like to thank all those who intervened to show the importance of the dossier and its innovative character. I will make two clarifications. First, we will evaluate the framework, but it shows from our dialogue with the judicial authorities that they can work without increasing the framework for the moment, unlike what has been done in other cases such as the application of the 1965 law or that of the additional staff of the penalty enforcement court. Here, it seems to us that we can work with the existing framework. by

Furthermore, given the innovative nature of the procedures provided by this project, we are working with the judicial authorities on a law enforcement circular. We hope to see him out as soon as the court returns.