Proposition 54K1442

Projet de loi complétant et modifiant le Code pénal social et portant des dispositions diverses de droit pénal social.

General information ¶

Submitted by

MR Swedish coalition

Submission date

Nov. 5, 2015

Official page

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Status

Adopted

Requirement

Simple

Subjects

administrative offence labour inspectorate labour law fraud offence judicial proceedings social legislation social security criminal law penalty amendment of a law legislative drafting moonlighting

Voting ¶

Voted to adopt

CD&V Vooruit LE PS | SP ∉ Open Vld N-VA LDD MR PP VB

Abstained from voting

Groen Ecolo PVDA | PTB

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Discussion ¶

Feb. 18, 2016 | Plenary session (Chamber of representatives)

Full source

Mr. Speaker, colleagues, I will briefly illustrate how the discussion of the draft law supplementing and amending the Social Criminal Code and several provisions of social criminal law has taken place.

In his introductory presentation, Deputy Prime Minister and Minister of Labour, Kris Peeters, acknowledges that the text aims, among other things, to update the violation descriptions and the sanctions relating to the prevention of psychosocial burden at work. Psychosocial burden at work includes stress, violence, harassment and unwanted sexual behavior at work.

After that, Minister of Justice, Mr Koen Geens, in his introductory presentation explains the content of other parts of the draft law on the Social Criminal Code. Where necessary, a number of technical corrections are made in relation to criminal provisions, which have already been found in other legislative texts. There is also coordination with other provisions already included in the Social Criminal Code which need to be corrected for inconsistencies in the text itself.

The Minister points out that the Social Criminal Code and the present bill have a long history. The preparations for the draft law have already begun in the previous legislature. It is the closing part of the Social Criminal Code in our country. In the meantime, the Social Criminal Code has shown its usefulness in the field, according to the Minister.

State Secretary for Combating Social Fraud, Privacy and the North Sea, Mr. Bart Tommelein. In turn, he emphasizes the importance of the Social Staff Code in the fight against social fraud. For him, the proposed text is also the closing point for the enforcement chain in the prosecution and sanction policy where administrations and Justice play an important role. The Social Criminal Code is for all actors, inspectors and labor auditors involved in the fight against social fraud, the daily working instrument.

During the general discussion, colleague Christian Brotcorne, on behalf of his group, expressed support for the indispensable bill. He has a question about Article 189 of the Social Criminal Code, which will be discussed in subsequent discussions.

Stefaan Van Hecke also said he would support the draft law and recalled that the Social Criminal Code came into force four years ago. The law of 6 June 2010 will only be subject to a thorough review in the spring of 2016. The Minister has issued a four-quarter mandate. Mr Hecke regrets the late timing of the evaluation. The results could have been included in the bill.

Collega Sonja Becq points out that the formulation of the Social Criminal Code was preceded by a titanic work at the time. She hopes that the code has resulted in a simpler and more efficient application of social regulations.

On behalf of the Open Vld Group, I announce that our group will support the bill. On my question regarding Article 189 of the Social Criminal Code, the Minister of Justice will reply later in the hearing.

Collega Monica De Coninck points out, on behalf of sp.a., the preparations that preceded the creation of the Social Criminal Code, already in the previous legislature. Codification aims to promote transparency and efficiency. Like the previous speakers, she is of the opinion that an assessment is imperative. The SPD will support the bill.

Finally, colleague Sophie De Wit, on behalf of the N-VA, stresses the importance of the formulation of the Social Criminal Code, which follows the structure of the Criminal Code, which is good for clarity.

After the general discussion, there was the response of Minister of Justice, Koen Geens. The following is the article-by-article discussion, the discussion and the vote of a number of amendments that needed further clarification. Eventually, the draft law will be unanimously approved in the committee. So far my report.

Mr. Speaker, Mr. Secretary of State, we would like to submit and defend an amendment.

The amendment, of which you have received the written version, aims to ensure that the sanction – since the legislation has included a certain responsibilisation, including of workers who operate in illegal situations and may be subject to sanctions – does not apply to illegally staying third-country nationals who have filed a complaint against the employer.

We ask that because the non-declaration of employment often happens under pressure from the employer. In addition, there is a large speculation zone of, as stated here in the legislation, knowingly and intentionally exercising undeclared labour. This is a fortiori the case for victims of trafficking in human beings, for which Chapter 4 of the Act of 11 February 2013 just provides for the facilitation of complaints against misleading employers.

If there is no legal certainty for the data subjects and the filing of a complaint does not immunise them, that uncertainty will have a deterrent effect. Many people who are the victims of such a situation will no longer dare to file complaints.

Mr. Speaker, Mr. Secretary of State, Mr. Minister, colleagues, we have been able to conduct the discussion thoroughly in the committee.

In general, the draft poses little problems because it is an adaptation and supplementation of the law. In fact, since the adoption of the law and its entry into force in 2011, new legislation has been adopted, which had yet to be integrated into the Social Criminal Code.

In the committee, I also referred to the very long period that has passed since the drafting of the text, the advice and the final submission, resulting in several legislative amendments following the given opinions, which subsequently were also integrated into the text. However, I will not return to this.

When we talk about the text, it is very important to note that the law has been in place since 2011. It is therefore very important to make a thorough evaluation.

What happened in 2010 and with the entry into force in 2011, is, of course, historical. Ten years have been spent working to try to integrate all social legislation into one large text, to make the work on the ground easier for the social inspection services, for the labour audit boards, for the labour courts and the like. This has been a very good thing and we have always supported that exercise.

Therefore, it is also important, if some changes are made now, to also make a thorough evaluation. That evaluation could be, for example, on the hierarchy of sanctions, as it was new to work with four levels, and on the efficiency of the measures. We may also wonder whether the Social Criminal Code has a more deterrent effect than previous legislation, which was introduced through laws containing various provisions. Are the process-verbals of the social inspection effectively followed and sanctioned? Is there any progress in this regard compared to the situation before the Social Criminal Code? Does it work faster and more efficiently today?

Such questions seem to be important for an evaluation. The Minister also announced that an evaluation would take place in the spring. We would have done that evaluation better before implementing the changes currently in place. But well, if there is a thorough evaluation, then we think that is a good thing. I hope that the elements I have now mentioned can be the subject of a thorough evaluation. In general, I think we should regularly review the more complex legislation.

In fact, there were only a few articles discussed. One of those articles discussed is the subject of amendment no. 10, which we submitted for the plenary session, based on the question I raised during the discussion. It was then Article 31 and now Article 32 of the text. It is about the changes related to the undeclared labour, in popular terms the black labour.

For all clarity, today black labour or undeclared labour is always punishable for the employer, but for the employee or for the person who performs the work only if he also enjoys a benefit. This may not be widely known. Now, the preliminary draft that was submitted provides for an extension to persons who carry out regular work, as an employee, official or self-employed, and who, in addition, are attached in black. They are also punishable. This is logical and there is no problem with it.

In the draft law that was finally submitted to the Chamber, we see that a step further is being taken. The criterion that someone already performs regular work is removed, so that anyone who, in a subordinate relationship, consciously and intentionally performs undeclared work – so it is defined – can also be punished. I must say that this may sound logical at first, but I have asked questions about it in the committee.

We will now bring the weakest people to their responsibility, prosecute them and they can be punished.

This can have a perverse effect. What can this result? There are real bad employers. People can really be victims of human trafficking. They are employed for 2 or 3 euros per hour, but they have no OCMW support, no unemployment support, no sick care, no regular work, no income. Well, they work in the black and it shouldn’t, but they’re the victims of malicious practices and human trafficking. In the fight against illegal practices, it is important that these people can also file a complaint, that they can be heard, that they can file a complaint in order to tackle the struggle against the malicious structures.

What is the risk today? Suppose someone is persuaded to file a complaint and asks if he will be punished himself. Then today we can say, no, you will not be punished. That is why it is often very important for the person who makes the declaration to take that step. It is also a very important element in the construction of the file. If this text is approved and one wants to persuade somebody to file a complaint or make a declaration, and that person asks if he or she will be punished, then one will have to answer: yes, you can be punished. The risk is that this notification will not be made.

That is the risk of extending the punishment to that very vulnerable group. It can have a perverse effect.

Then one has to make a consideration. Or we make sure that we can punish a few more people, people who have no benefits and no income and are victims of human trafficking. We may then be able to punish a few dozen a year, impose them a fine that they cannot pay, with the perverse consequence that they will be less willing to file a report. Therefore, there will be fewer files to fight against the real malicious practices. That is the consideration that we must make.

If we have to make that consideration, we will fight as hard as we can against the malicious organizations and employers who abuse and exploit people’s weaknesses. We therefore ask not to go so far.

The original text of the preliminary draft was good. I do not understand why one has gone a step further between the preliminary design and the final text of the draft. With what purpose has this been done, given the perverse effect it can generate?

Therefore, in our amendment we propose to return to the text of the preliminary draft.

In this way, the fight against severe social fraud and especially against those who organize them and abuse the weak situation of people in need can be addressed as a priority. It does not target the people who are actually the victims of it.

Mr. Speaker, I would like to come back to the two amendments submitted, on the one hand by the SP and on the other, by Green-Ecolo.

We can now also punish black workers who do not receive benefits. Thanks to the amendment of the Social Criminal Code, anyone who does black work can be punished. We were in the very peculiar situation in which only employers and people who get benefits can face a penalty, while people who are employees or have a job elsewhere can’t get a penalty for black work.

In the past, this meant that employers were often heavily fined for unemployed work and that beneficiaries often had to reimburse benefits they had lost or received incorrectly.

I also refer to the beginning of the legislature. In my policy note, I then made it clear that social fraud is a crime and that crimes should be punishable. There is no point in establishing a crime and then doing nothing about it. The rationale that everyone is equal before the law and everyone should be punishable for a similar situation must therefore apply here. It is impossible for one to be criminalised and for the other not.

It is time for all of us to realize that black labour is a crime. Some people are trying to tell me that a little black work is good for the economy, but that’s not. A little black work is not good, just like working all in the black. Now, let’s finally blow the balloon completely.

People who are black do not have social rights. A black worker cannot get a benefit if he becomes unemployed. Those who are ill and ill are not insured. If something goes wrong in the workplace, then the black worker has no rights, even if the company where he is employed in the black may go bankrupt. Black work is not okay.

We find flash checks and fines for other forms of crimes, such as traffic offences, quite normal, but when it comes to checks and fines on black work, I find that a portion of the population and of politics is always increasing. I do not understand.

I will return to the proposals in the amendment. I do not understand why there should be an exemption for people who reside illegally on our territory.

I do not understand how we can explain to the public that black work is wrong, but that it should be for people who stay here illegally. The Social Criminal Code is clear: the penalties stipulated therein can be imposed. The issue is not that they will be imposed, they can be imposed, and there are level 1 penalties with a maximum of 600 euros.

Dear colleagues, if there is exploitation, humiliating circumstances or human trafficking, then the punishment can of course be suspended, that is the logic itself. It was like yesterday, it is like today, and it will remain like tomorrow. I would also like to remind everyone that we have recently been visited by an international organization and that we are internationally renowned for our approach to human trafficking. Our social inspection and our services are an international example of how human trafficking can be addressed and how to deal with those people. We are internationally renowned for this and are celebrated for it.

I do not think that there should be an exemption for people who stay illegally on the territory. That is a double misunderstanding, because illegally staying on the territory must not in itself; in addition to saying that those who stay illegally on the territory are the only ones who can not get a sanction, and the rest, I honestly find a serious anomaly.

I am the Secretary of State for Combating Social Fraud. I have to fight black labour. I also fight social dumping, and fighting social dumping means primarily addressing people who are being exploited, who live here in humiliating conditions. This government has even made it a priority.

If we now give the signal that we only do half that, and that we give people who are exploited here a special classification, then I think we are giving a totally wrong signal. I refuse to give that signal.

I would like to reiterate that it is not necessarily the person concerned who submits the complaint. Over the past few months, I have had to be a pioneer in the establishment of the Social Fraud Reporting Point. At the moment, that point of contact can process the complaints that arrive in a structural way.

We have announced that at this time private persons can file a complaint. Now it can also be for companies.

The point of contact will soon be extended with a button for organisations, specifically for trade unions and consumer organisations, as well as for human rights organisations. They will be able to submit complaints. If we provide for all these matters, I find that there is no reason to intensify the fight against black labour and at the same time signal that we will not do so for a certain category of people, in particular for people who are illegally staying in this territory, and will exempt them from any sanctions.

Returning to the old proposal, as Mr Van Hecke puts it, also means that all people who are not workers, such as students, unemployed and housewives, and who work in the black, can not be sanctioned. I am not prepared for that.

If we want to give a clear signal that black labour is not possible in our society, then it must also apply to everyone.

Mr. Secretary of State, I feel like you are opposing things that no one is against.

We are ready to listen to you. I would like you to listen to us too.

We had a discussion in the committee. The report shows that there was a unanimous agreement. Pretending that the opposition is opposed to an investigation into social fraud is therefore not in question. The fact that people should be punished was not a problem for us. To be an example internationally is possible. This is the merit of a number of successive responsible persons. Our concern is to remain an example internationally. That you are fighting against fraud and social dumping is very good; the previous government did too.

I hope that you will work with the same energy against tax fraud and that you will take initiatives and connect databases. The human rights organizations button on your click phone is also no problem.

When it comes to victims of human trafficking who submit a complaint, we only ask that they cannot be fined. In your replica you say that it is obvious that they will get an exemption. You say that here. You have even said it. If this is so obvious, write it in the law. This is not an unreasonable question, right? Victims of human trafficking, for example women who are forced to prostitute here... Yes? So it can.

Mrs. De Coninck, first of all, I have never said that you are against the fight against social fraud. I don’t know where you get that.

Second, I did not say here that my predecessors did not fight social fraud. Those who know me a little, know that in various forums I have repeatedly praised my predecessors who have fought social fraud for the efforts they have made. Mrs. Kitir knows that. This applies to Mr. Crombez, it applies to Mr. Devlies and it also applies to Mr. Vanvelthoven. So you should not pretend that I want to put the plum on my hat that I am the only one in the history of Belgium that fights social fraud.

Mr De Conick, you should read your amendment again. You are talking about victims of human trafficking. I do not see this in your amendment. You make it very clear in your amendment that anyone who does black work should be able to get a penalty, with the exception of those who are illegally staying in this country. Mrs. De Coninck, I tell you that I do not want to give the population the signal that anyone can face a sanction except for those who stay here illegally. I refuse to give that signal.

Mr. Tommelin, you have forgotten a bit. These are illegal third-country nationals who have filed a complaint. It is just about that group. If I know a little about the spirit of the law on human trafficking, then there has been a very long and clear discussion that we should protect the weakest from sanction because otherwise one would have the opposite effect, namely that they would no longer dare to file a complaint.

Then they hit nowhere.

Mr. Speaker, my colleagues, this is a foolish conversation. In all reasonable terms, I think we all want the same thing, but it should not be on paper and that I feel sorry.

Mr. Secretary of State, we have calmly discussed this. I asked questions about Article 31 in the committee, but you were not present. Now you will come to give a whole explanation. You were there to present the article and to communicate with the press, but at the time the texts were discussed, you were not present. It would be pleasant for you to be present in the future so that the debate can be carried out in the committee.

For all clarity, none of us here advocates black labour, and I do not advocate black labour either. You must not put me or anyone else in the mouth of such words. What I said is that this measure can have a reverse effect. You say you want to fight against black labour and against those organizations. I also think that is important. The question is what is the most efficient way to carry out that struggle. If you go too far, you get a reverse effect. That is what I wanted to say.

Mr. Tommelein, you say that one is not obliged to prosecute, but that it can. What is in the law? “With a sanction of level 1 is punished anyone who...” Without exception. The parket may decide not to prosecute, but this is not about the parket. Level 1 is administrative. “Anyone is punished who...” That’s everyone. Will your services be happy when they may be able to give a fine to a few dozen illegal persons, fines that those involved will not pay? The result will be that you will have less well-matched files to tackle the illegal circuits. That is the consequence.

We submitted this amendment to return to the original proposal. We will also support the amendment of SP.A. because that is the goal.

The human trafficking legislation also provides for exceptions and a special protection status for victims of human trafficking. You should be based on this in order to be able to fight efficiently against those who abuse those people.

Mr. Secretary of State, if the text is approved as it is now formulated, you actually give malafide organizations a gift. You know there will be much fewer complaints. Even if there is an extension because organizations are allowed to do it, when it comes to providing evidence, you need testimonies and statements from people who have worked there and who can explain how it came to it.

Therefore, I would like to ask you to support one of those two amendments. You say our amendment is not going far enough, Mr. Secretary of State. We only suggest returning to the preliminary design, which is your text. And if you say that our amendment is incomplete — think of the students, the housewives — that means that you didn’t think about it when you submitted the draft. Now you should not say that our amendment is incomplete, because I fall back to your first text. You say the text is crazy, but it’s your text.

Let us reasonably consider this issue, examine the amendments and adopt them. The only effect will be that the fight against illegal circles and malicious practices will be more efficient than with the proposal on the table today.

Mr. Van Hecke, you are just pretending that the exploitation can only happen with respect to persons who are illegally in the territory. Black labour is widespread in our society. It is not always, as some people want to point out, that the employer is the requesting party for black work. In many cases, it is because of a number of other factors that employees make the choice and demand from their employers to be compensated in the black. Whoever has two legs in society knows that perfectly, Mr. Van Hecke.

If you want to refer the exploitation of people only to those people who reside here illegally, you are narrowing the problem of black labour. The group of people who reside here legally and are forced to work black or choose to do so, is even greater than the group of illegal people on our territory. In other words, you want to make exceptions, while I want to boost the fight against black labour, precisely because of social exploitation, because of the associal situation in which those involved then have to work. We must give a very clear signal that no one in this society has the right to black work. To have a certain group out there now for whoever would like it, I do not think is a good signal.

Mr. Speaker, colleagues, I would like to speak a few words in Latin, as is common today. Fortiter in re, suaviter in modo. Since I know that Mr. Van Hecke hates Latin, I will translate it. That is, one is strict in the principles, but smooth in their application. I think colleague Tommelein also said this right now.

Together with the Minister of Labour and the State Secretary for Combating Social Fraud and Privacy, I will ask the Attorneys-General to issue a prosecution directive for the specific category concerned here, namely persons who are victims of human trafficking, which puts this Latin principle into practice. Of course, we are all against black labour, but it must remain possible for this specific group of persons to make clear that they are the victim. Under certain circumstances, a declaration is inevitable. I would like to add this to the fortiter in re of colleague Tommelein. I, of course, approve of his position, but you know colleagues, once tjeef, always tjeef— suaviter in modo!

Mr. Speaker, I have the impression that the Secretary of State is somewhat misunderstood. Everyone here is against black labour and everyone thinks we should act against it. That is the principle and the finality. However, one must ask how, in the specific cases of human trafficking and illegal employment, one can ensure that the most vulnerable workers file a complaint. Only in this way can the finality be achieved.

Your colleague talks about punishment. I think the question, however, is primarily how those people can be encouraged to file a complaint so that malafide employers are portrayed and also effectively addressed. In this way, the finality, on which everyone agrees here, can be realized.

I just ask you to think from that perspective. We as an opposition also try to think and act from your perspective.