Proposition 53K2413

Projet de loi établissant l'enregistrement électronique des présences sur les chantiers temporaires ou mobiles.

General information ¶

Submitted by

PS | SP the Di Rupo government

Submission date

Sept. 13, 2012

Official page

Visit

Status

Adopted

Requirement

Simple

Subjects

work labour inspectorate building industry protection of privacy electronic government database occupational health subcontracting entrepreneur moonlighting

Voting ¶

Voted to adopt

Groen CD&V Vooruit Ecolo LE PS | SP Open Vld MR VB

Abstained from voting

∉ N-VA LDD

Party dissidents ¶

• Peter Luykx (CD&V) abstained from voting.

Contact form ¶

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Discussion ¶

Dec. 13, 2012 | Plenary session (Chamber of representatives)

Full source

Mr. Speaker, I will briefly present the report on the present draft law. We discussed the bill on 20 November in the Social Affairs Committee. The project aims at the introduction of an electronic system for the registration of the persons present at a temporary or mobile construction site where works are carried out, when at least two contractors are at work simultaneously or successively. The draft sets out the obligations for all parties and imposes sanctions for those who fail to meet the obligations. The concrete implementation will be fixed in a royal decree.

The obligation applies to buildings with an area of at least 1 000 square meters. In this way we get a clear picture of the persons present on a construction site, their activities and their status. Identifiability is important for safety in the workplace, in this case the construction site. Identifiability also makes it easy to check whether employers, for example, comply with their obligations regarding working hours and notifications.

Several members of the committee made comments on the many practical decisions that still need to be taken by royal decree and remain unclear in the draft. For example, what should be understood by a total area of 1 000 square meters? The MR suggests that the system should first be applied to farms larger than 1 000 square meters. CD&V considers the minimum surface area rather large, as there is also fraud committed on smaller buildings. The Minister specifies that although the system will first be applied to buildings of at least 1 000 square meters, it will be discussed with the Construction Confederation the introduction of a registration system for smaller construction sites.

Various political groups also have questions about the development of the registration systems, the database and its financing. The Minister states that one wants to come up with an integrated registration system connected to existing databases. The cost of the system will be largely paid by the administration and is estimated at 3.5 million euros.

MR and CD&V ask whether there is a risk that the European Commission would raise objections against the registration system, but according to the minister, the registration obligation does not conflict with European regulations.

Open Vld and MR emphasize the importance of sound consultation with the construction sector in the further development. Open Vld also considered it important to provide compensation for the sector, for example through the overtime system.

The Minister plans to consult with the most vulnerable sectors that wish to introduce the registration system, in order to examine how their wage costs may be reduced.

As the system requires a further elaboration of the royal decision, there are also many questions about the timing. The database is almost ready. The Minister expects the first phase of the project to be completed within six months to a maximum of one year.

This was in a note at the report. The bill was approved on 26 November 2012. Twelve committee members voted in favour. There were two abstentions.

Let me immediately add to this the position of the CD&V Group.

We support the present design, which is not only important because it ensures safety at work. It also makes it possible to clearly map who is present. We also see that such a measure is important in a sector that is known to have a large number of foreign workforce and where there are sometimes specific fraud problems.

The proposal also builds on the 2008 initiative of my colleague Carl Devlies, who is also your predecessor, Mrs. Minister.

Europe and the NAR have also called for the introduction of an electronic registration system.

For us, the present text is a good starting point. However, as I have already noted, there is still a lot to be worked out in the Royal Decree. For example, we think of the many privacy terms and rules that the registration system must meet. Who will take care of it? Which persons have access to the data in the database?

Furthermore, the system will only enter into operation after the various possible systems have also been technically implemented.

The system will first be applied to the large buildings. However, it is important for us that it is also active on the smaller farms. We are pleased that the Minister is willing to engage in further discussions on this subject.

We hope that you will be able to implement the proposal quickly. You promised that the implementation will take up to one year. We will ⁇ continue to follow up on the dossier.

In order to discourage malafide contractors, of course, the chances of pacing must also be increased. It is therefore important that we, through the present bill, not only provide a legal basis, but that you also ensure that the chance of packing increases. To this end, a greater focus on targeted controls and a greater use of the social inspection should be made. This is what we ask and we strongly urge.

Finally, we believe that the system could also be extended to other sectors that are also fraud sensitive. I would like to hear from you what your concrete plans are.

We will approve this bill due to the safety of the buildings and because it is an important step to be able to verify whether all legal obligations are complied with. That is why we will support it.

Mr. Speaker, Mrs. Minister, I would like to begin by saying that we absolutely do not question the philosophy behind the bill. Work on a building must be done in a safe way and that must be done with qualified people. Therefore, we have no problem with an efficient and closing control on the construction works. If we can thus also combat black labour and unfair competition in the construction industry, we only welcome that.

In the committee you said that no one would escape the application of the new law, so not even the false self-employed, wherever they come from. That is good news, Mrs. Minister, but here today we are going to hunt a law through Parliament with more questions than answers.

You may know the phrase that you should not stretch the cart before the horse. Three weeks ago, together with colleagues from the majority factions, I asked you a lot of questions in the Social Affairs Committee. I will not repeat those questions today. On many of these questions, however, the answers will only be clear through the royal decrees, which are yet to be written.

A closing and affordable technical solution is still uncertain. The administrative burden for contractors is also unclear, in the absence of a concrete procedure. There will be a huge responsibility on the construction management. And per workplace there will be only one construction direction that will bear the final responsibility, even though there are very different contracts, various works that today are often awarded through different public procurement procedures. Those ultimately responsible risks heavy penalties, heavy fines and even prison sentences.

In addition to all these technical and practical questions, there are also important legal questions. I bring them here to your attention so that you can still take these comments into account.

First, what about the privacy legislation? Since the law still leaves many questions open and is very vague, it is difficult for the Privacy Commission to make a judgment. The implementing decisions are still missing and will make it clear whether or not privacy issues will arise.

You say that the electronic registration on the construction works will apply to everyone, both for self-employed and for phony self-employed, and therefore also for companies that do not belong to the parity committee of construction but that are somehow active on a workspace.

I hope, Mrs. Minister, that the European Court of Justice will not put you sticks in the wheels in the coming weeks. By the end of the year, it will decide on the Limosa registration obligation for foreign self-employed. This would constitute a violation of the free movement of services. If the European Court of Justice condemns Belgium, it can still be difficult for you to insist that foreign self-employed persons must be included in the electronic registration system.

In summary, today you want to pass a law that may never be implemented. You are asking for carte blanche, including heavy penalties in the Social Criminal Code, while there are still huge practical and legal gaps. Thus, you are especially at risk of hitting those contractors who actually think well and who want to fully comply with the legislation. I know that this ⁇ is not your intention, but it can turn out like this.

Is it too late? I mean not. I have understood that you plan to consult with the sector leaders for next week. That’s good news, but in fact that consultation should have been intensely ongoing for months. You should have been able to tell us today how the implementing decisions of the law will look like. Those implementing decisions should have been subject to the examination of the industry, the Privacy Committee and Europe. Then you had a final draft law.

I think you’ve tightened the chariot for the horse, and that’s a pity. We have no laws that are inexhaustible in practice. We really hope that the further approach to this project will be done professionally.

When my group abstains from this vote, it is not because we are against the principles of the law. Safety is important, black labour and unfair competition on construction works must be combated. We ⁇ do not question this, on the contrary. Effective and enforceable legislation, however, means that the laws must be thoughtful, and that their implementation is clear and inclusive. You are asking carte blanche, while there are still incredibly many questions to answer. We therefore hope that bonafide entrepreneurs do not become victims of this law. You cannot give us that guarantee today.

The fight against social fraud in the construction sector is a goal that the MR strongly supports. Indeed, this fraud clearly penalizes companies that comply with the rules and unfair competition strikes virtuous actors. The fight against social fraud must allow the market to sanitize.

In addition, some practices are ⁇ unacceptable in terms of remuneration or working conditions. Therefore, black sheep must be hunted in this sector. We support you 100%.

With regard to this bill, however, the MR wishes to point out some points that deserve reflection.

First, the minimum area of the construction site in question, i.e. 1,000 square meters, will affect a very large number of construction sites. We wonder if it would not have been more efficient to start by implementing this measure on large construction sites (2, 3 to 4,000 square meters) before generalizing it to the smaller construction sites. It would, in fact, be easier to test the system on a small number of large construction sites than on a large number of small construction sites.

Then, as regards the registration system, we are pleased to note that the system recommended by the construction sector could be chosen to be generalized; this is what is evident from your remarks in commission However, it seems to us that the costs of implementing this device will have to be borne by the state, since it is abnormal that new charges are imposed on companies already heavily affected by the economic crisis.

Finally, as my colleague just said, we persist in thinking that the key to the successful fight against black labour in the construction sector, as in other sectors, consists in intensified controls. We fear, in fact, that if the installation of this recording system is not accompanied by an increase in controls, things will probably not change fundamentally. Sure, fraudsters will be clearly identified when a control has confronted them with the situation, but if there are no more checks, things will not really change.

Here are the comments that we wanted to make after all the very clear explanations you provided in the committee.

I would like to remind you that it is important to avoid excessive administrative burden on companies. We must try to find a device that is effective without overloading the boat on the administrative level. This is the only message I want to insist on today.

Lanjri, first and foremost, I would like to thank you for the good report of the committee.

The question was asked whether I intend to apply this system in other sectors. In the framework of the budget discussions, the Government has decided to look first for the hospitality industry and the construction industry for opportunities to support these sectors very specifically, although on the condition that there are somehow registration systems. Companies or sectors wishing to cooperate can therefore very specifically receive either wage subsidies, or tax or RSZ reductions.

Mrs. Van Eetvelde, I always notice that people agree with the great principles when it comes to fraud or black work, or when it comes to abusing people or leaving injured people as a result of work accidents. As a human being, of course, one cannot be against it, and one cannot also list arguments against it. If one then tries to concrete with all sorts of measures to do something to the reality, then I find that there are 37 good reasons why something is impossible, and that we must therefore still continue to tolerate black work, fraud or false independence. If Europe thus thinks that there must be a single labour market with freedom of services and workers, then it will still have to allow some sort of control.

Limosa is the system that records that one works here with employees. If I am not mistaken, the law stipulates that people who work here must comply with the working conditions here. This is not only about salary, but also about the quality of work and the control of well-being at work.

We cannot simply present implementing decisions here, precisely because we want to develop them together with the sector. If we did not do that, I would ⁇ have received from you the blame that we did not cooperate with the sector.

Talks have already been held. The administration has already done a lot of preparatory work around using existing databases. For all clarity, we want to especially support the bonafide entrepreneurs and ensure that we create win-win situations. In this way, I also address the concerns of Ms. Fonck. The use of software and ICT should also reduce the administrative burden for entrepreneurs and make things easier literally and figuratively.

Mr. Clarinval, why did we choose a minimum area of 1 000 m2? That sounds small but it’s about building at least 6 apartments. So it is not really about small private projects, it is about projects of which one can suspect that some commercial investments with third parties are being realized. We start with buildings above 1 000 m2 because there is already a registration obligation for those buildings, there is already a database for them. We want to build on that further. We also want to address the registration obligation regarding the presence of people in the workshops – not only employees, but all those who are present there – we want to address. Therefore, we start from 1 000 m2.

I absolutely share your concern that there should be enough inspections. Therefore, additional inspectors have been recruited and a number of selections are underway. Another important element is that we also give all inspectors the necessary powers. There are inspectors with different specific tasks, but we will generally assign a number of powers to all inspectors. Particularly with regard to the presence, they will be given the authority to register and draw up process minutes.

Mrs. Minister, I thank you for your response.

Of course, we are against black labour and against insecurity on construction sites, but I must note that we still have a lot of questions of a technical and practical nature? We will surely know what exactly will be in if the execution decrees and the royal decrees are there.