Proposition 53K3270

Projet de loi portant modification de la loi-programme (I) du 27 décembre 2006 en vue d'étendre les interventions du Fonds amiante.

General information ¶

Submitted by

The Senate

Submission date

Oct. 9, 2013

Official page

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Status

Adopted

Requirement

Simple

Subjects

asbestos occupational disease home help damages public health

Voting ¶

Voted to adopt

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

Abstained from voting

∉ N-VA LDD

Party dissidents ¶

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

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Discussion ¶

Jan. 30, 2014 | Plenary session (Chamber of representatives)

Full source

Nahima Lanjri, rapporteur, refers to the written report.

With this bill, the majority wants to make some adjustments in connection with the operation of the Asbestos Fund. I am convinced that here we have a chance to correct a historical mistake regarding the Asbestos Fund. It is clear that the government in the past has failed to regulate the asbestos industry.

The culprits of this terrible disease have, in my view, been able to pull out a ⁇ favourable arrangement, both financially and legally. In fact, victims who resort to the Asbestos Fund and receive a relatively small compensation can no longer initiate civil proceedings to demand, for example, additional moral damages. Furthermore, it is not the asbestos companies themselves that finance the victims they have caused. All companies must contribute to the fund, including companies that have nothing but nothing to do with the asbestos problem. I think we have a very good lobby here.

Therefore, we have submitted two amendments to reflect the responsibility of the companies that caused the illness. We apply the principle “the polluter pays” so that at least the companies that are convicted must pay a higher contribution than companies that have nothing to do with the problem. I think this is the evidence itself.

With a third amendment, we also wish to protect the victims who suffer from a disease other than the two that are compensated by the Asbestos Fund. Science is now so far away that it can distinguish between, for example, a lung cancer caused by asbestos, and the same disease caused by smoking. We believe that these victims should also be compensated.

Dear colleagues, I hope you all can come here. It has taken enough time for these companies to enjoy immunity.

Mr. Speaker, Mr. Secretary of State, dear colleagues, the PS group welcomes this bill, which is an initiative – it must be recalled – of our Senate colleagues, and which brings an undeniable improvement for all those who are qualified as environmental victims of asbestos.

In fact, the legislation on occupational diseases leaves two categories of victims without compensation, namely self-employed workers, whose social status does not include a specific branch "occupational diseases", and non-occupational victims. As of April 1, 2007, the Asbestos Victims Compensation Fund, a fund with specific financing and integrated into the Occupational Diseases Fund, was established.

By extending the interventions of the Asbestos Fund to the full reimbursement of health care and to the granting of an allowance for the assistance of a third party, a discrimination that affected so-called environmental victims, who could not benefit from these two forms of compensation for occupational damages either in the employee regime or in the public sector, is now removed.

However, the concrete advantage is not banal, as for the highest degree of assistance, the allowance for third-party assistance is more or less 1 553 euros net per month.

Finally, I would like to say to those who would still doubt the relevance of the principle of employee civil immunity, which is based on a historic compromise between social partners and whom my group refuses to be touched in one way or another, that the compensation is not far from the amount that the victim could actually obtain in a common law procedure. Given its differences, the majority of compensation would be determined by transactions and would therefore not be comprehensive.

Mr. Speaker, Mr. Secretary of State, colleagues, I would like to go back with you in time, more specifically to the year 1928.

When occupational health insurance came to light in 1928, it was agreed that employers who contribute to the solidary occupational health insurance can no longer be sued in court by the victims. This is called the immunity of the employer and that immunity applies to prosecution by the victim. The government may continue to prosecute.

Employees who cause an occupational illness have, in exchange for that immunity, a major advantage with the system, and that for the following reasons.

First, occupational diseases, and ⁇ occupational cancer, arise long after the exposure that caused the disease. The burden of proof for the victim is very heavy. Assuming that the victim may have suffered the disease in three companies where he has worked in succession, who should he then report? You see the problems already arise. The lawyers can still earn some money, but the victim itself — at least who can afford a lawyer — threatens to remain in the cold.

Second, in exchange, one does not have to prove the fault of the employer in order to receive a benefit. It is sufficient that one has worked in a certain company where there were certain risks and that one suffers from a disease that one could have encountered in that company. Therefore, there is no need to prove a link between the exposure in that enterprise and the disease.

If a victim of a occupational disease has to go to court, he must prove where he suffered from that disease, whose fault it is, and that there is a clear link between the exposure in that business and that occupational disease.

In addition, there must be a company or an employer against whom one can proceed. When it comes to Schreers-Van Kerckhove from Sint-Niklaas or Johns-Manville from Mol, it becomes ⁇ difficult because those companies have long ceased to exist. Those who previously worked in those companies and today suffer from a mesothelioma can still go to the Occupational Disease Fund and will be compensated.

The same principle of immunity in occupational health insurance was adopted at the establishment of the Asbestos Fund for environmental victims, but also here in return there is a great advantage for the victims, in the sense that they do not have to prove who or which company was responsible for the exposure to asbestos which led to that disease. It does not matter whether the asbestos came from the braking of cars, from the wave plates of a pigeon basket or from the working clothes with which the father of the ranch came home, or whether one lived near an asbestos processing plant located in Kapelle-op-den-Bos, in Mol, in Sint-Niklaas or elsewhere, and it does not matter whether that company still exists or not; it makes no difference. It is sufficient to prove that one lives in Belgium for a long enough time — asbestos cancer is only manifested years after the exposure — and then every mesothelioma is compensated anyway, as soon as the application is made.

If the principle of employer immunity is abandoned today, the employers will stop funding the Asbestos Fund. Then the employers may also withdraw from the solidary occupational illness insurance because then they will no longer have any interest in their contribution. In that case, every victim of mesothelioma, occupational disease or environmental victim must try to get his or her right before the court itself and sometimes wait years for a first judgment. Some victims will then be allocated a sum, but many will receive nothing at all. Whoever receives an amount, may in the future receive an amount that will not be higher than today in the Netherlands. That amount for most people is much lower than what they can get from the Asbestos Fund today. Unfortunately, for many victims, this is nothing. Some lawyers can get better, but the victims themselves can’t.

The Asbestos Fund has the great merit that every environmental victim of mesothelioma can be compensated without any evidence of exposure or error of anyone and that that compensation is determined according to the social needs, and that these needs are met properly and quickly, without the victim or the relatives having to go to court.

That arrangement is now improved by the draft of Secretary of State Courard.

We do not intend to put this arrangement on the slope for a root that is kept before the nose of victims and where they can go years in vain behind.

The National Labour Council was asked for advice on this matter and unanimously defends the principle that one must choose between either going to court or appealing to the Asbestos Fund.

Whether that is intended or not, whoever challenges immunity today undermines a foundation of our social security system. We fit for that.

Mr. Speaker, Mr. Secretary of State, dear colleagues, I did not have the opportunity to participate in the committee work: at the same time, we were discussing the bill on the status of psychotherapists. Nevertheless, the project that came to us is the result of a long work done in the Senate, on the basis of various bills filed, some of which came from the Ecolo-Groen group.

When I read the final text outlining the position of the majority, I was disappointed, or even struck by the elements presented, contained in the proposals, given the proposals issued by the associations – including the Belgian Association for the Defense of Victims of Asbestos (ABEVA) which concerns the whole of Belgium –, given their fighting, given the evaluation of the existing arrangements.

So I agree with Ms. Sminate: we missed an opportunity to profoundly change the functioning of the Fund, its compensation and compensation capabilities for victims. This text only serves to bring the indispensable correction of a discriminatory measure indispensable to be corrected. That is why we will support it when it comes to imposing that intervention in health expenses is the same for both environmental victims and occupational victims. This was a will of the arrangement established when the Asbestos Fund was created.

Nevertheless, I find it unacceptable that the Senate discussions have been stopped. Auditions were held, people came to speak and expose their experiences. Then the decision was made to stop the work and not modify the device more completely.

Ecolo-Groen will support the measures, but by submitting amendments to mark its dissatisfaction with the proposed measures.

These amendments are of several orders. A first amendment proposes to extend the scope of diseases covered by the compensation from the Lung and Laryngeal Cancer Fund in the event of a higher fiber presence than currently.

For now, people in whose lungs the presence of fibers is detected are excluded from the Fund’s intervention because the permitted rates are too high or because the disease they suffer may not be exclusively due to asbestos because they smoke – as the doctor sometimes says. However, if asbestos fibers are detected, it is that the person has been exposed and is therefore the victim of asbestos. Therefore, I think that the scope of the Fund’s intervention could have been expanded.

In a second amendment, we propose to extend the permissible period between the time of exposure and the time of declaration of the disease. Asbestos diseases are characterized by long incubation times, which exceed the twenty years currently provided in legislation. Certainly, there is a difference between the duration of prescription or intervention in the Civil Code or in the deadlines of the Asbestos Fund. Our amendment wants to extend this period from twenty to fifty years to incorporate it in the program law creating the Fund rather than only in the Civil Code.

A third amendment, by amendment, is also necessary, and this may answer Mrs Kitir’s question. When a company, which has exposed workers – therefore environmental victims – knowing properly that it made them run a fatal risk, is condemned by a judgment, it must compensate them and repair the damage suffered – this was the case in 2012. It would be logical, when the responsibility of the company is established, that it is penalized and must participate in a greater way in the fund financing than all the employers, who pay a low contribution according to their wage mass.

It is not normal that all employers must cover mistakes committed voluntarily by an employer.

During the discussions and in the opinions given by the National Labour Council on the accountability of the employer who exposes his workers, some wanted to reject the French system that installed an inexcusable fault principle.

This system provides that the employer is obliged to guarantee the safety of his workers. If he does not guarantee it, even in the absence of intentional misversions, he must assume the consequences of this exposure. This mechanism has not been integrated into our legislation because, in Belgium, employers and workers have negotiated that in case of occupational illness, the intervention is systematic without seeking responsibility.

In voting on the creation of the Asbestos Fund, we accepted this limitation and this way of organizing.

Mrs Gerkens, let me make it clear that, also for us, those who have committed an asbestos-related crime can be held accountable. This is about civil law. If a company does not follow the rules on asbestos, it can still be correctionally prosecuted. This is only about civil law.

Employers affected by the Fund’s co-financing are limited in terms of contribution. It is true that it is necessary to ensure that all employers continue to finance the Caisse intended to cover funding of the Fund.

As I said, we do not question the principle. In fact, in Belgium this is not possible, given the mechanisms of social concertation. Nor do we question the fact that the victim is compensated without necessarily being based on the principle of inexcusable fault and therefore of immediate condemnation of the employer who exposes his worker.

However, if there was intervention of the Asbestos Fund to compensate a victim, following a judgment where a real intention to harm the employer was identified – I think of Eternit – it would be logical, in solidarity with the other employers, that the employer incriminated participates a little more and is subject to an additional contribution. Our bill proposed that this type of employer would pay 1% of the contribution on the wage mass while the others would continue to pay 0.01% of the contribution. Employers still operating on Belgian territory and voluntarily exposing their workers are rare, but they deserve to be punished.

In addition, it would have been interesting to continue the discussions, to see what tools to use, how to proceed. Per ⁇ a different system than the one we proposed could have been implemented. But the discussions that took place in the Senate ended at the initiative of the majority and the Secretary of State. I think here, in particular, of the green number that allowed victims to have rapid access to information, in case of asbestos discovery, about their feelings, their illness, about how the Fund intervenes, the procedure to follow. It is known that many victims are still unaware of the existence of this Fund. It was therefore a minimum measure that could have been implemented through ⁇ limited budgets and aimed at improving the information and support of the persons concerned.

By 2020-2025, the number of victims will reach ⁇ 20,000. More and more people will be sick and, consequently, the interventions will also be more and more. We act as if everything was going well and there was no action to take.

Last year, the Fund for Diseases found that the number of files filed has doubled. He seemed even to be surprised, while, necessarily, the number can only progress, from people who develop the disease after several years of exposure and ⁇ also because of a broader communication. Therefore, we really need to prepare ourselves on both the budgetary level, the taking into account of victims and a form of accountability towards those who have made voluntary acts of exposure.

We have submitted amendments that introduce these elements. If we are not adopted in the plenary session today, I would find it important that we can still give ourselves time, during the two-and-a-half months of work that we have left, to rework this dimension relating to the Compensation Fund and the victims of asbestos because this theme can no longer wait. Thinking together about how to improve the device can only be beneficial, both for employers, workers and environmental victims.

Mr. Speaker, Mr. Minister, dear colleagues, this project constitutes a step forward for the recognition of the trauma suffered by environmental asbestos victims in the sense that it extends the interventions of the Asbestos Victims Compensation Fund to the image of the interventions covered by the Occupational Disease Fund. Asbestos Fund compensates victims of asbestosis and mesothelioma, two diseases that can only be contracted after being in contact with asbestos. Anyone suffering from any of these diseases can be compensated, whether a work or environmental victim, i.e. the family of a worker or a resident close to an asbestos plant.

The Asbestos Fund recognized 212 victims of mesothelioma last year. This represents an increase of 13% compared to 2012 and almost 25% compared to 2011. Last week, ABEVA, the Belgian Association of Asbestos Victims, once again drew our attention to this increase in victims. “The health catastrophe is yet to come,” she warned in a statement.

Although the end of asbestos production occurred in Belgium in 1998, it remains abundantly present in the environment and in buildings and roofs, such as schools, etc. According to the ABEVA, “asbestos-related cancers have the characteristic of a latency that can go up to 45 years.” Since the peak of production appeared in the 70s and 80s, it seems obvious that in Belgium, as in other industrialized countries, the peak of asbestos-related deaths will occur around 2020-2025.

The Asbestos Fund’s support for victims’ health care at the moderator ticket level, as well as the cost of third-party assistance, thus enhances the assistance to victims. Discussions in the Senate show that this advance can be made without increasing the share of employers since the solidarity between employers for the victims has generated sufficient funds to cope with the new expenses.

This Fund is ⁇ a small comfort compared to the unmeasured suffering of the victims, but it has the merit of being inspired by a solidarity and social insurance scheme as it guarantees equal financial compensation for all recognized asbestos victims. Not surprisingly, the Reform Movement will then support this reform.

Mr. Speaker, first of all I wanted to tell you that when we talk about the Asbestos Fund and asbestos in general, we actually talk about a disease that has caused horrible dramas and which, unfortunately, has not been followed quite closely both politically and socially, even at certain times by the social partners, and which should not have caused so many victims. This should always be remembered when talking about compensation for victims, because there really is a major social responsibility.

Furthermore, we welcome, of course, the extension of compensation and equal treatment between environmental victims and occupational victims, as there was indeed an anomaly. I think it was a long-standing request from victims and associations to see environmental victims and occupational victims treated equally, whether it is health care, third-party assistance or end-of-life accompaniment. I am really excited that we can adopt this measure today, as it was long anticipated and that it will benefit dozens of patients today.

Certainly – I think I can also speak on behalf of my colleague Catherine Fonck as a doctor – we would have liked to go further, I must confess, in these provisions. Debates were held in the Senate; proposals were submitted. I respect the social partners and I hear their arguments, but I must admit that, at least on one subject, we could have gone further: compensation for bronchial cancer, larynx cancer, nose cancer, a series of other diseases that are related to asbestos exposure. I was told that the diagnosis is complicated and the link between the disease and risk exposure is more difficult to demonstrate.

This is already the case for mesothelioma. This is a very difficult disease to diagnose. It must be done by nine doctors (current procedure) to be subject to compensation. There are sufficiently strong, sufficiently strong evidence that, even when there has been smoking, for example, a reliable link can be established between asbestos exposure and the development of these diseases. I hope this debate is not closed. Today we are witnessing an important step.

With regard to the issue of the Green Number, there is already a service that is performing and ⁇ not sufficiently known. It is important to make it better known at the level of the Occupational Disease Fund. There is no need to duplicate this service, but it is better to make it known, because it is extremely efficient and deserves more advertising.

I will speak very briefly, Mr. Speaker.

I disagree with the analysis of the opposition. I would like to remind you that this is about ending discrimination and giving more rights to hundreds of people affected, environmental victims. The text extends rights and puts everyone on the same foot. It was important.

Breaking the current system is obviously depriving oneself of corporate contributions, it is leaving hundreds of people on the plate because they will not go to court for lack of time, envy or means.

I think the system is good. It is definitely perfectionable. I also asked the FMP (Professional Disease Fund) to try to recognize more difficulties, problems and diseases. We’ve just talked about larynx, lung cancers. This is currently being reviewed by the Scientific Council. It is known that the causes of these diseases are often multifactorial but I believe that one can try to reach a consensus on this subject and consent to an effort to cover even a little better the costs incurred through the Fund.

I am very pleased with this significant progress.

I cannot allow to say that breaking the system would imply that employers would no longer participate. At no time do I propose to break the system.

The current system effectively allows a patient recognized as a victim of an asbestos exposure to receive compensation through the Fund that insures everything. We do not know who is responsible for the exhibition. The arrangement provides that in case of recourse to the Fund for compensation, you cannot go to court. However, it appears that for some people, it is not money that is the engine of their claims. It is also the repair of an exhibition and a fate suffered for a number of years.

The proposal made through an amendment we have submitted is to give the person the option to decide, after the intervention of the Fund, to go to court to obtain a moral and possibly financial reparation. If there is a financial repair, there is of course a refund from the Asbestos Fund. The aim is not to allow individuals to obtain multiple compensation.

However, some companies have consciously exposed workers to asbestos for years and still today are exposing them by producing materials from asbestos or by demolishing boats or other buildings containing asbestos, without guaranteeing their protection. The unconsciousness and lightness you show to them is not tolerable for the victims.

The mechanism remains as it is and a possibility is offered. If there is compensation in court, there will be a refund from the Asbestos Fund. This is what is provided in the arrangement.