In a previous article, we discussed the legislative proposal to modify the Social Penal Code. This proposal was approved by the Federal Parliament during its last session on 8 May 2024. While awaiting the publication of the act in the official gazette, we would like to give the reader an overview of the modifications in book 2 of the Social Code. Book 2 lists all the crimes and the sanctions. The reform modifies the sanction levels for certain crimes and also introduces new crimes.
1. Increases in the amounts of the fines for sanction levels 3 and 4
The first thing to consider, is that the sanction levels are also modified by the reform:
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Level 1: admin. fine: 80 - 800 euro
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Level 2: admin. fine: 200 - 2,000 euro; penal fine: 400 – 4,000 euro
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Level 3: admin. fine: 800 - 8,000 euro; penal fine: 1,600 – 16,000 euro
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Level 4: admin. fine: 2,400 – 28,000 euro; penal fine: 4,800 – 56,000 euro; prison sentence of 6 months to 6 years.
This means an increase in the fines of levels 3 and 4 (the overview already includes the legal multiplication with 8).
2. Increase of sanction levels
Most of the modifications in Book 2 entail an increase of the sanction level, e.g. the case for:
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Breaches of the rules regarding the prevention advisors and person of trust (from level 2 to level 3);
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All kinds of crimes regarding non-payment of wages (from level 2 to level 3);
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The employee who works illegally without social security notification (from level 1 to level 3);
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Not taking out an occupational accident insurance (from level 3 to level 4);
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Mandatory information and notifications regarding collective dismissals (from level 2 or 1 to level 3);
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Non-payment of specific social security contributions (from level 2 to level 3).
3. Decrease of sanction levels
However, some of the provisions which were deemed to enforce mostly administrative or procedural rules know a decrease in their sanction level, e.g.:
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When the employer does not send a letter with info about a medical test (from level 2 to level 1);
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When the employer does not follow the procedure to fix the replacing holidays (when they fall during a weekend) (from level 2 to level 1);
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Some of the crimes regarding part-time work are reworked (from level 3 to level 2)
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Not appointing a contact person when posting workers to Belgium (from level 2 to level 1)
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Not keeping the individual account according to the rules (from level 2 to level 1)
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Non-compliance with rules regarding staff register, special staff register, register for presence and register for working time (from level 4, to a gradual decrease pe specific crime, going from level 4 to level 1);
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Not providing the mandatory mentions in the internal work rules (only the employer, no longer also the delegate) (from level 2 to level 1);
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Not following the legal rules for disciplinary sanctions is no longer a crime.
4. New social crimes
The reform also introduces some new crimes which were previously not explicitly mentioned, e.g.:
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Letting employees work outside of work schedules set for variable week schedules or for floating hours (level 2);
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concluding an internship agreement which violates the min. conditions for specialist doctors in training (level 2);
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Not (or late) paying eco vouchers (level 2);
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Not paying compensation for provision/maintenance work attire (level 2);
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Not providing or not paying for the necessary work instruments (level 2);
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Not paying the minimum wage of the sector of the user of illegally hired-out workers (level 4);
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Not notifying the NOSS if the posting of a worker lasts longer than originally planned (level 4);
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Not giving / incorrectly drafting the holiday certificate (paid annual leave) (level 2);
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The employer who on purpose provides incorrect or incomplete information regarding the temporary unemployment of an employee in case of control (level 4);
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The use of "constructions of undertakings" in order to receive social benefits or in order to pay less contributions is qualified as fraud (level 4).
5. Entry into force
These changes are introduced by the second chapter of the Act, which does not include any specific provisions regarding the entry into force. This means that the modification will enter into force 10 days after the publication of the act in the Official State Gazette.
6. Complete overview of the changes
Please contact pieter.pecinovsky@vow.be to receive a complete schematic overview of the changes to Book 2 of the Social Penal Code.
Source: Legislative proposal 55K3914007
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.