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What is changing?
The Social Penal Code has been in existence for more than a decade. It was time to adapt it to social realities.
The reform aims to protect workers from unlawful employment practices by severely punishing social fraud and social dumping. This concept is now defined in the Social Penal Code.
The Social Penal Code has been amended at several levels:
- Jail sentences have been limited to the most serious cases
- The recidivism term has been extended from one to three years
- A new penalty has been introduced for level 3 and 4 offences, namely exclusion from the right to participate in public procurement or obtain concessions for a period of three to five years.
The Social Penal Code has recently been thoroughly reformed. We analyse the main changes.
Criminal and administrative fines have been significantly increased for Level 4 offences and have been doubled for Level 3 offences. However, certain penalties for administrative offences have been reduced if they were committed in good faith by the employer. The Social Penal Code also provides for new social offences at the employer's expense, which are punished at level 2. In cases of intentional fraud, judges may consider this as an exacerbating factor, justifying stiffer level 4 sanctions. These sanctions may include a professional ban, an operating ban or even the temporary closure of the company.
The reform also introduces changes to the powers of social inspectors. They can now request the intervention of police forces to gain access to workplaces and occupied premises. In addition, they have the power to act independently in carrying out their assignments.
What penalties have been increased?
The Code still maintains four levels of penalties. The plan to introduce a fifth infringement level was abandoned at the request of the social partners.
Level 4 offences increased
Level 4 offences are the most serious and lead to the most severe penalties and prison sentences. In particular, these include:
- Employment of workers staying illegal
- Child labour
- Non-payment or late payment of the minimum wage, coupled with other offences.
Unintentional failure to take out work accident insurance is now subject to a Level 4 penalty, while if it is unintentional, the penalty remains Level 3.
The maximum criminal fine for level 4 sanctions has been increased from €48,000 to €56,000.
Level 3 offences doubled
The criminal and administrative fines for level 3 offences have doubled:
- Employment of undeclared workers is now more heavily punished
Level 3 sanction instead of level 1 previously
- For non-payment or late payment of wages
Sanction of level 3 instead of level 2 previously
- Not appointing a psychosocial prevention advisor and a confidential advisor in the company
Sanction of level 3 instead of level 2 previously
What penalties have been reduced?
Although the general trend is towards stricter penalties, penalties for some common administrative offences have been reduced for employers who are bona fide.
Here are a few examples:
- Not keeping part-time employment contracts or the personnel register at the place where the employment regulations are posted
- Not complying with the disclosure rules for the replacement of public holidays
- Not maintaining the individual account according to the legal rules
What are the new social infringements?
The Social Penal Code provides a level 2 penalty for employers who fail to comply with certain of their legal obligations in the contractual field. Employers are punished with a level 2 sanction if they:
- fail to comply with the obligations for the introduction of a sliding work schedule (for example, the employer does not provide a system of working time tracking)
- Fail to pay the fee due for providing, maintaining and cleaning work clothes
- Not providing the employee with work tools or not paying the allowance for materials
New table of penalties
The amounts of the fines have been set by sanction level, including the "opdeciemen" (a multiplication factor applied to fines, currently set at 8).
|
Level |
Administrative fine |
Criminal fine |
|
1 |
from €80 to €800 |
/ |
|
2 |
from €200 to €2,000 |
from €400 to €4,000 |
|
3 |
from €800 to €8,000 |
from €1,600 to €16,000 |
|
4 |
from €2,400 to €28,000 |
from €4,800 to €56,000 |
For a level 4 sanction, the employer can also be sentenced to a prison sentence of 6 months to 3 years. Moreover, the amount of the fine varies depending on the type of breach and is multiplied by the number of employees involved.
What does Securex do for you?
Are you not sure whether you apply all wage and working conditions correctly? Do you want to check whether you comply with social legislation? Request a audit from Securex and make an appointment now with consultinglegal@securex.be.
Are your labour regulations no longer up to date? Then contact your Legal Advisor right away at myHR@securex.be.
Do you still need a employment document? Check out Lex4You > Model documents: you can download all kinds of social documents there.
Implementation
Law of 15 May 2024, published in the Belgian Official Gazette on 21 June 2024, enters into force on 1 July 2024. Some provisions enter into force at a later date specified in the law.
Sources