Legislation to be adopted on workplace harassment
In April 2002, a government bill relating to protection from violence, moral harassment (bullying) and sexual harassment at the workplace was nearing adoption in the Belgian federal parliament. The bill, submitted by the Minister of Employment and Labour, has prompted disagreement among the social partners. In the view of employers' associations, the bill is unsuited to labour relations in enterprises.
Debate in Belgium on harassment at the workplace got under way in earnest in summer 2000, when two senators lodged a non-government bill aimed at outlawing any form of workplace harassment. The National Labour Council (Conseil National du Travail/Nationale Arbeidsraad, CNT/NAR), which includes employers' and trade union representatives, initiated a debate shortly afterwards. However, concertation in the National Labour Council was sharply interrupted when the Federal Minister of Employment and Labour, the socialist Laurette Onkelinx, lodged her own government bill in February 2001. This initiative prompted irritation among the employers - as Arnout De Koster, director of the social department at the Federation of Belgian Enterprises (Fédération des Entreprises de Belgique/Verbond van Belgische Ondernemingen, FEB/VBO), remarked at the time: 'Ms Onkelinx's bill is based on a legal approach that is far removed from realities on the ground. It will encourage a shift towards an American-style judicialisation of labour relations whereby employees will be able to complain about the most trifling matter to a tribunal.' By contrast, the trade unions gave the Minister's bill a warm welcome.
The Chamber of Deputies approved Minister Onkelinx's government bill on 28 February 2002, and the Senate's Social Affairs Commission subsequently adopted the proposal unanimously, opening the way for the legislation's final adoption.
The new legislation aims not only to prevent violence, moral harassment (ie bullying) and sexual harassment at work, but also to protect workers who are the victims of such acts. Belgian law has hitherto been silent on the phenomenon of violence at work but, using three European Union Directives as a basis, the new law will amend two current items of Belgian law:
- the law of 4 August 1996 relating to workers' well-being in carrying out their work; and
- the Judicial Code's provisions relating to protection from violence.
The aim of the new legislation is to encourage every enterprise, whether private or public and irrespective of its size, to put a 'prevention model' in place through the adoption of an annual prevention plan. This must contain clear information aimed at workers, including: to whom they should address complaints of harassment/violence; when this can be done, and how to complain. The social partners will be able to conclude collective agreements designed to adopt measures in this area that are more closely suited to the realities in particular sectors of activity.
All enterprises will have to appoint a 'prevention adviser' with skills in the psycho-social aspects of work and of violence at work. In enterprises with fewer than 50 employees, the prevention adviser will have to be a member of an external prevention and protection service and not a member of the workforce. In firms with more than 50 employees, the adviser may come from the within the enterprise itself, but his or her appointment will have to be agreed by workers' representatives on the company's committee for prevention and protection at the workplace (Comité pour la prévention et protection au travail/Comité voor preventie en bescherming op het werk, CPPT/CPBW).
In concrete terms, the government bill provides that worker who believe themselves to be the 'victim' of harassment can take the matter the prevention adviser. The adviser will seek to identify an internal solution though conciliation. If this proves unsuccessful, the adviser will have to pass the matter over to the Employment and Labour Ministry's Medical Inspectorate (Inspection médicale/Medische inspectie), which will in turn attempt conciliation. If this, too, is unsuccessful, the Medical Inspectorate will forward a 'pro justitia ' report to the Labour Prosecutor (Auditeur du travail/Arbeidsauditeur). The latter will then have the task of dealing with the matter in the most appropriate way.
The new law will contain a number of fundamental innovations:
- reversal of the burden of proof. Henceforth, when a worker brings a grievance in respect of harassment, it will be for the 'harasser' (whether the employer or an employee) to prove that it has done nothing wrong. Hitherto, it has been up to the victim to prove a case;
- plaintiffs and, if appropriate, witnesses will now receive protection against dismissal (with compensation of six month's pay if employers do not comply). Prevention advisers will also be protected so that they can perform their duties independently;
- there will be a new obligation on workers, namely a duty to involve themselves positively in the prevention policy, and not to carry out any acts of violence or make improper use of the grievance procedure. The enterprise may have work rules that include penalties applicable to workers who make improper use of the grievance procedure; and
- the job of prevention adviser will be 'professionalised'. Advisers will have to have a university degree backed up by specialist and continuing training.
Employers' associations - such as FEB/VBO and the Union of Small Firms and Traders (Union des classes moyennes) - have called for the bill to be amended. They think that it is 'ill suited to labour relations in enterprises' and feel that 'it is not effective, will incur additional expenditure, and will not achieve its aim.' They are also opposed to the reversal of the burden of proof on the grounds that it will turn every employer 'into a potential suspect'. However, their efforts have been in vain as the Senate is keen to vote the bill through.