Act To Amend Several Provisions Concerning The Welfare Of Workers During The Performance Of Their Work Including Those Relating To Protection Against Violence And Moral Or Sexual Harassment In The Workplace

Original Language Title: Loi modifiant plusieurs dispositions relatives au bien-être des travailleurs lors de l'exécution de leur travail dont celles relatives à la protection contre la violence et le harcèlement moral ou sexuel au travail

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Posted the: 2007-06-06 Numac: 2007200952 SERVICE PUBLIC FEDERAL employment, labour and social consultation January 10, 2007. -Act to amend several provisions concerning the welfare of workers during the performance of their work including those relating to protection against violence and the moral or sexual harassment in the workplace ALBERT II, King of the Belgians, all, present and to come, hi.
The Chambers have adopted and we endorse the following: chapter I:.
-Available general Article 1. This Act regulates a matter referred to in article 78 of the Constitution.
CHAPTER II. -Amendment of the Act of 4 August 1996 concerning the welfare of workers during the performance of their art work 2. A article 4, § 1, paragraph 2, of the Act of 4 August 1996 concerning the welfare of workers during the performance of their work, as amended by the laws of 7 April 1999 and June 11, 2002, the following changes are made: has) the 3rd is replaced by the following provision: «3 ° the psychosocial burden caused by work, which. in particular, violence and moral or sexual harassment in the workplace; (' b) 8 ° is repealed.
S. 3. article 32bis from the Act, inserted by the law of 11 June 2002, is replaced by the following provision: «art.»
32bis. employers and workers and assimilated persons referred to in article 2, § 1, and persons, other than those referred to in article 2, § 1, which come into contact with workers during the performance of their work, are required to refrain from any act of violence or moral or sexual harassment in the workplace.
Persons, other than those referred to in article 2, § 1, which come into contact with workers during the performance of their work, for their protection, the provisions of articles 32decies to 32duodecies.
The King shall determine the conditions and detailed rules according to which this chapter applies to external companies workers who are permanently in an establishment of the employer at which activities are performed.
S. 4. section 32ter of the Act, inserted by the law of 11 June 2002, the following changes are made: has) 1 is replaced by the following provision: «1 ° violence at work: each factual situation where a worker or other person to which this chapter is applicable, is threatened or attacked psychically or physically during the execution of the work. "
(b) 2 ° is replaced by the following paragraph: "2 ° moral harassment at work: several abusive conduct similar or different, external or internal to the company or the institution, which occur for awhile, who object or effect to impair the personality, dignity or physical or mental integrity of a worker or other person to which this chapter is applicable. in the performance of her work, jeopardizing his job or to create an intimidating, hostile, degrading, humiliating or offensive environment and that manifest themselves through words, intimidation, acts, gestures or unilateral writings. These pipes may in particular be related to religion or belief, disability, age, sexual orientation, gender, race or ethnic origin";
(c) the 3rd is replaced by the following provision: «3 ° sexual harassment in the workplace: any unwanted conduct verbal, non-verbal or body with sexual overtones, which has the object or effect of violating the dignity of a person or of creating an intimidating, hostile, degrading, humiliating or offensive environment. ';
(d) article is supplemented by the following subparagraph: "where the harassment is related to religious beliefs, disability, age, sexual orientation, gender, race or ethnic origin, the provisions of this chapter constitute the transposition into Belgian law of: 1 ° the directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation;
2 ° 29 June 2000 directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin;
3 ° directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment between men and women as regards access to employment, training and professional promotion, and working conditions, as amended by directive 2002/73 of 23 September 2002".
S. 5. article 32quater, § 1, of the Act, inserted by the law of 11 June 2002, is replaced by the following provision: "Article 32quater.". § 1. The employer determines pursuant to the General principles of prevention referred to in article 5 what measures should be taken to prevent violence and moral or sexual harassment in the workplace.
It determines these preventive measures based on a risk analysis and taking into account the nature of activities and the size of the company.
The measures referred to in paragraph 2 are at least: 1 ° of the physical and organizational measures whereby violence and moral or sexual harassment in the workplace can be prevented;
2 ° of the implementing procedures when facts are reported and which have particularly related to: has) the home and the Council to individuals claiming to be the object of violence or moral or sexual harassment in the workplace;
b) the modalities according to which such persons may appeal the prevention consultant and the trusted person designated for the acts of violence and moral or sexual harassment in the workplace;
(c) responding rapidly and completely unbiased person of trust and the prevention consultant;
d) delivery to work of workers who reported having been subjected to violence, moral or sexual harassment at work and support to these persons on the occasion of their fitness to work.
3 ° the specific measures for the protection of workers who, in the execution of their work, come into contact with persons other than those referred to in article 2, § 1, which come into contact with workers during the performance of their work;
4 ° the obligations of the line management in the prevention of acts of violence and moral or sexual harassment in the workplace;
5 ° the information and training of workers;
6 ° the information of the Committee.
The measures referred to in paragraph 3 are taken after the opinion of the Committee, with the exception of the measures referred to 2 °, which are taken with the agreement of the Committee.
When no agreement is reached, the employer asks the opinion of the official supervision referred to in article 80, the conditions and according to the rules laid down by the King.
Without prejudice to the provisions organizing the relations between public authorities and trade unions of the officials of these authorities, the employer may take the measures when the agreement is still not obtained further to the notice referred to in article 5 provided that at least two-thirds of the members representing workers within the Committee have given their agreement.
S.
6. article 32quinquies of the same Act, inserted by the law of 11 June 2002, is replaced by the following provision: "Article 32quinquies.". The employer shall ensure that workers who, in the execution of their work, were the object of an act of violence committed by persons other than those referred to in article 2, § 1, of the law and who are in the workplace, receive psychological support appropriate authorities or institutions specialized.
Without prejudice to the application of other legal provisions, the employer bears the costs of the measure referred to in paragraph 1.
The King may determine the limits in which the costs referred to in paragraph (2) are paid by the employer.
S. 7. article 32sexies of the Act, inserted by the law of 11 June 2002, is replaced by the following provision: «art.»
32sexies. § 1. The employer decides, in accordance with arrangements in pursuance of Chapter VI, if the missions that are attributed to the prevention consultant by the present chapter will be carried out by the internal service for prevention and protection at work or by the external service for prevention and protection at work.
If he entrusts missions to the in-house for the prevention and protection at work, it means, after receiving the consent of all members representing workers within the Committee, a prevention consultant specialized in the psycho-social aspects of work including violence and moral or sexual harassment in the workplace.
If no agreement is achieved, the employer asks the opinion of the official supervision referred to in article 80, the conditions and according to the rules laid down by the King.
If, after the notice referred to in paragraph 3, the agreement is still not obtained or if the employer is less than 50 workers, the employer appealed to a prevention consultant specialized in the psycho-social aspects of work including violence and harassment moral or sexual at work which belongs to an external service for prevention and protection at work.
The employer who has in its internal service for prevention and protection at work of a specialised prevention adviser in the psycho-social aspects of work including violence and moral or sexual harassment in the workplace, may appeal in addition to an external service for prevention and protection at work.
The

Advisor prevention referred to in this paragraph may not at the same time exercise Adviser competent prevention for the occupational medicine.
§ 2. The employer shall designate, as appropriate, one or more persons of trust, after the consent of all the members representing workers within the Committee.
He dismisses their function after prior agreement of all the members representing workers within the Committee.
If no agreement is obtained on the designation of the person or his distance, the employer asks the opinion of the officer monitoring the conditions and according to the rules laid down by the King, before making the decision. If he does not follow the opinion of the officer, he shall inform also the reasons the Committee.
If the employer appealed only to a prevention consultant to an external service for prevention and protection at work, the person must be part of the employees of the employer if it occupies more than 20 workers.
Trusted people exercise their function independently and cannot harm due to their activities as a person of trust.
The person may not simultaneously serve as competent prevention for the occupational health adviser.
The King may determine the conditions and procedures for the legal position of the person of confidence.
§ 3. The King determines the missions and the tasks of the prevention consultant and trusted people, as well as the training necessary to carry out their mission.
» Art. 8 section 32septies of the Act, inserted by the Act of 11 June 2002, the words "in consultation with the victim" are replaced by the words "after the agreement of the worker who introduced the reasoned complaint.
S. 9. article 32octies of the Act, inserted by the law of 11 June 2002, is replaced by the following provision: «art.» 32octies. in the settlement of work are included at least the following: 1 ° the coordinates of the Advisor prevention and, where appropriate, the person of confidence;
2 ° the procedures referred to in article 32quater, § 1, paragraph 3, 2 °. » Art. 10. in the heading of section 3 of chapter Vbis of the Act, the word "workers" are replaced by the words "workers, employers and other persons who are in the workplace.
S. 11. article 32nonies of the Act, inserted by the law of 11 June 2002, is replaced by the following provision: «art.» 32nonies. A worker who considers be subject to violence or moral or sexual harassment in the workplace applies to the prevention consultant or person of confidence and may file a complaint motivated to such persons under the conditions and according to the procedures laid down pursuant to article 32quater, § 2.
The worker referred to in paragraph 1 may also apply to the official supervision referred to in article 80, which, under the law of 16 November 1972 concerning the Labour Inspectorate examines whether the employer complies with the provisions of this chapter as well as its execution orders.
S. 12 in article 32duodecies of the Act, inserted by the law of 11 June 2002, the following changes are made: 1 ° 1st paragraph is supplemented as follows: «5 ° the Centre for equal opportunities and the fight against racism, in disputes that relate to the areas referred to in article 2, paragraph 1, 1 ° and 2 ° of the Act of 15 February 1993 creating a Centre for equal opportunities and the fight against racism;
6 ° the Institute for equality of women and men created by the law of December 16, 2002 in disputes related to sex".
2 ° paragraph 2 is replaced by the following provision: "the power of the organizations referred to in paragraph 1 shall not affect the right of the person who declares to be the object of violence or moral or sexual harassment in the workplace to act personally or to intervene in the proceeding.
3 ° to paragraph 3, the word "4 °" is deleted.
4 ° to paragraph 3, the words 'the victim' shall be replaced by the words "a person who declares to be the object of violence or moral or sexual harassment in the workplace.
S. 13. section 32tredecies of the Act, inserted by the law of 11 June 2002, the following changes are made: a) the § 1 is replaced by the following provision: "§ 1.» The employer may not terminate the employment relationship, except for reasons unrelated to the complaint in the action in the courts or to the testimony or modify unjustifiably unilaterally following workers working conditions: 1 ° any worker who has filed a complaint to the level of the company or the institution that employs him, according to the procedures in force;
2 ° the worker who filed a complaint with the official supervision referred to in article 80;
3 ° the worker who has filed a complaint with the police, a member of the public prosecutor or the investigating judge;
4 ° the worker who brought or for which an action is brought to justice to enforce the provisions of this chapter;
5 ° the worker involved as a witness by the fact that he wears, the review of the reasoned complaint to the attention of the Adviser in prevention, in a document dated and signed, the facts that he himself has seen or heard and which concern the situation that is the subject of the reasoned complaint or by the fact that it acts as a witness to justice. (' b) in § 2 the words "of the reasons referred to the § 1» are replaced by the words" reasons and justifications referred to the § 1.
(c) § 4 is replaced by the following provision: "§ § 4 4» The employer must pay compensation to the worker in the following cases: 1 ° when the worker, the request referred to in § 3, paragraph 1, is not reinstated or resumed service under the conditions that prevailed before the facts that prompted the complaint and that the judge ruled the dismissal or unilateral modification of working conditions contrary to the provisions of § 1;
2 ° when the worker has not introduced the application referred to in § 3, paragraph 1, and the judge ruled the dismissal or unilateral modification of working conditions contrary to the provisions of § 1.
The allowance is equal to the choice of the worker, either a lump sum corresponding to the gross remuneration of six months, or the loss actually suffered by the worker. In the latter case, the worker must prove the extent of this damage.
("d) § 5 is repealed;
(e) section 6 is replaced by the following provision: "§ § 6 6.» When a proceeding is commenced on basis of a complaint to the level of the enterprise or institution, the prevention consultant shall immediately inform the employer that the worker who filed a reasoned complaint or witness enjoys the protection referred to in this article from the time at which the complaint is submitted or from the time of filing of testimony.
The witness in justice communicates itself to the employer that the protection referred to in this article is applicable from the convening or the summons to testify in court. There is mention in the convening and the quote that it is up to the worker to prevent his employer of this protection.
In cases other than those referred to in paragraphs 1 and 2, the person who receives the complaint is required to inform the employer of the fact that a complaint has been introduced and that the persons concerned therefore benefit from the protection referred to in this article from the time at which the complaint is submitted as soon as possible. (' f) § 7 is repealed.
S. 14 it is inserted in chapter Vbis of the Act, section 4, worded as follows: "Section 4. -Information and access to documents Article 32quaterdecies.
The complainant receives a copy of the reasoned complaint.
The review of the reasoned complaint the person questioned and witnesses receive copies of their statements.
Artikel 32quinquiesdecies.
The prevention consultant and trusted people are held to professional secrecy referred to in article 458 of the penal Code.
By way of derogation from this obligation: 1 ° the prevention consultant and trusted person shall communicate any information they consider relevant for the proper conduct of conciliation to those who participate.
2 ° examining the reasoned complaint, the prevention consultant is required to communicate to the person questioned the facts alleged to him;
3 ° the prevention consultant sends the employer a written notice on the results of an impartial review of the reasoned complaint and whose content is fixed by the King;
4 ° the prevention consultant provides to those who can demonstrate an interest a copy of the document which notifies the employer that a reasoned complaint filed along with the application for action by the official monitoring referred to in article 32septies;
5 ° the prevention consultant is available to the official in charge of monitoring individual complaint file with the exception of documents that contain the statements of persons who were heard by the competent prevention consultant.
Article 32sexiesdecies. Where pursuant to this chapter, the employer intends to take measures which may alter the conditions of employment of the worker or when the worker intends to bring an action at law, the employer shall provide this worker

a copy of the only following in the opinion of the prevention consultant: has) the account of the facts;
b) the finding that, according the prevention consultant, the facts may be considered or not as violence or moral or sexual harassment in the workplace and the rationale for this finding.
(c) the result of the conciliation attempt;
(d) analysis of all causes of the facts);
(e) measures to be taken in order to stop the facts in individual cases or recommendations to the employer to take individual appropriate measures for the prevention of the psychosocial support).
Article 32septiesdecies. By way of derogation from article 10 of the law of 8 December 1992 relative to the protection of privacy with regard to the processing of personal data, the person concerned has no access to the data personal and at the origin of these data contained in the following documents: 1 ° the notes taken by the prevention consultant and the person of confidence during interviews carried out outside examination of a reasoned complaint subject to the application of article 32quinquiesdecies, paragraph 2, 1 °;
2 ° the reasoned complaint, subject to the application of article 32 m, paragraph 1 and article 32quinquiesdecies, paragraph 2, 2 °;
3 ° documents incorporating the statements of the persons heard by the Advisor prevention review the reasoned complaint, subject to the application of article 32quaterdecies, paragraph 2;
4 ° the report of the prevention consultant, subject to the application of article 32sexiesdecies;
5 ° specific personal data identified by the prevention consultant or person of confidence when their efforts and that their are exclusively reserved. » Art. 15. an article 32octiesdecies, worded as follows, is inserted in chapter Vbis of the Act, inserted by the Act of 11 June 2002: «art.» 32octiesdecies. the Registrar of the tribunal of labour and the Labour Court shall notify, under simple letter to the Department designated by the King, the decisions in accordance with article 578, 11 ° of the Judicial Code.
The Correctional Court and the appellate court clerks shall notify under simple letter, the Department designated by the King, decisions relating to infringements on the occasion of facts of violence, moral or sexual harassment at work.

The allotted clerk of the Council of State, administration section, notify, under simple letter service designated by the King, judgments from cases in which are invoked by the pleas relating to the application of this chapter"chapter III. -Amendments to other acts Section Ire.
-Amendment of the Act of 8 April 1965 establishing regulations of work article
16. article 14 (2), s) of the Act of 8 April 1965 establishing regulations of work, inserted by the law of 11 June 2002, is replaced by the following text: "s) the elements referred to in items 1 ° and 2 ° of article 32octies of Act of 4 August 1996 concerning the welfare of workers during the performance of their work."
Section II. -Amendment of the law of 16 November 1972 concerning the inspection of work article 17. article 3, § 1, paragraph 2, of the law of 16 November 1972 concerning the inspection of the work, as amended by the laws of 22 December 1989 and February 25, 2003, is supplemented as follows: "10 ° order measures, organizational measures y included, when they find that the employer has not established internal service for prevention and protection at work or that it does not appeal to an external service for prevention and protection at work while there. There was required and that this failure puts the safety or health of workers in danger.
Before ordering the measures referred to in article 2, 10º, they may require the employer to create an internal service for prevention and protection at work or to use an external service for prevention and protection at work within the time they determine.
"Section III. — Amendment Act of 11 June 2002 on protection against violence and sexual or moral harassment at work article 18. article 8 of the Act of 11 June 2002 on protection against violence and moral or sexual harassment in the workplace is repealed.
Promulgate this Act, order that it be under the seal of the State and published by le Moniteur.
Given in Brussels, January 10, 2007.
ALBERT by the King: the Minister of employment, P. VANVELTHOVEN sealed with the seal of the State: the Minister of Justice, Ms. L. ONKELINX _ Note (1) Session 2005-2006: records of the House of representatives. -Bill, 51-2686, no. 1.
Session 2006/2007: amendments, 51-2686, Nos. 2 and 3. -Report, 51-2686, no. 4. -Text adopted by the commission, 51-2686, no. 5. -Text adopted in plenary meeting and forwarded to the Senate, 51-2686, no. 6.
Full report: November 30, 2006.
Session 2006/2007: records of the Senate. -Project not mentioned by the Senate, 3-1958, no. 1.