New criminal offences in the criminal labour law Code - Sanctions for undeclared work and violations of regulation concerning psychosocial risks at work

29 Apr 2016

On 21 April 2016, a law amending and completing the criminal labour law Code was published in the Belgian State Gazette. As from 1 May 2016, many new criminal offences will be covered by the criminal labour law Code.

Two notable aims of the new law are to combat social fraud, in particular undeclared work, and to ensure that well-being at work is properly promoted, with a focus on the prevention of psychosocial risks.

Concerning the fight against social fraud, the most striking addition is the (re)introduction of sanctions against workers (or the self-employed or civil servants) who perform undeclared work, even if they do not receive replacement incomes. Such a possibility has existed since the end of 2009, but never effectively entered into force.

Two cumulative conditions have to be fulfilled to sanction the worker concerned:

  • the worker must knowingly and willingly perform undeclared work;
  • a police report has to be made against the employer for the undeclared professional activity.

The second condition implies that the employer himself risks fines, as well as criminal prosecution.

In such a case, the worker concerned could face an administrative fine, and if he receives income replacement allowances, a criminal fine as well. As for the employer, he could be criminally prosecuted.

Concerning well-being at work, the importance of the prevention of psychosocial risks (e.g., stress, burn-out, violence, harassment and inappropriate sexual behaviour) is underlined by the creation of new criminal offences related to non-respect or incorrect application of obligations in this regard.

Here are a few examples:

  • not implementing internal procedures that had been agreed with the Committee for prevention and protection at work or not mentioning them in the works rules;
  • not analysing the risks in a particular working situation when a member of the line management or at least a third of the workers’ representatives ask for it, or carrying out a risk analysis without the collaboration of the workers or the prevention advisor;
  • not taking appropriate prevention measures;
  • not determining the obligations of the line management concerning psychosocial risks prevention;
  • not correctly handling a formal request for intervention, in this regard not consulting workers’ representatives, adopting reasoned decisions in this regard and/or not notifying these decisions to the people that are entitled to benefit from them;
  • nominating a prevention advisor for psychosocial aspects or a trusted person who does not fulfil all the legal requirements.

> Action point
The new regulation underlines more than ever the importance of correctly filing a Dimona declaration of employment. Therefore, carefully monitor Dimona declarations, especially when you use intermediaries to file these.
Furthermore, as an employer, it is also important that you strictly respect your obligations concerning well-being at work and psychosocial risks prevention.