Download article in original language : BE0312304FFR.DOC
In July 2002, new legislation came into force in Belgium, aimed at tackling violence, bullying and sexual harassment at work. At the time, the law was strongly criticised by employers, which believed that it created too much room for abuse. In late 2003, both employers’ organisations and trade unions have completed their initial evaluations of the new legislation, with mixed findings.
On 1 July 2002, a new law on protection against violence, bullying and sexual harassment at work took effect, known as the 'Onkelinx law' after the then Federal Minister of Employment and Labour, Laurette Onkelinx. The new law extended the provisions of an existing law relating to workers' well-being in carrying out their work, by adding a number of provisions that focused specifically on these issues (BE0205301N).
One of the important aspects of the Onkelinx law consists of making employers and employees more aware of the issues concerned, and its emphasis is on prevention. Employees who feel that they are the victim of bullying can submit a complaint to a counsellor, a 'prevention adviser' or the relevant public inspectorate directly.
The law on workers' well-being obliges employers to take the necessary measures to promote the well-being of their employees whilst carrying out their work. As the protection of employees against 'conduct that oversteps the mark' is an integral part of the term 'well-being', the general principles on which the workers' well-being law is based also apply to the prevention of violence, bullying and sexual harassment at work. This means that the prevention of harassment should occur on the basis of the same principles and the same method as any other prevention policy at work. Final responsibility lies with the employer, which is obliged to carry out a risk analysis.
The risk analysis can be conducted in advance. This implies that the employer investigates whether there are situations in the company that could give rise to violence, bullying or sexual harassment at work. To investigate this, use can be made of questionnaires and interviews. However, risk analysis can also occur after incidents of violence or bullying have occurred at the workplace. The underlying causes can be sought for on the basis of complaints collected by the prevention adviser.
The employer should prioritise a number of preventive measures on the basis of the results of the risk analysis:
Every employer should appoint a prevention adviser who is specialised in the psycho-social aspects of bullying at work. In companies that have fewer than 50 employees, the employer should use an external prevention adviser. In companies with more than 50 employees, the prevention adviser can be part of either an internal or an external department. The employer can also appoint a counsellor to assist the prevention adviser. The appointment of a counsellor is not compulsory.
A key point of the new law is the so-called reversal of the burden of proof. The claimed victim must put forward facts to the court that could imply the existence of one of the acts described. It is then up to the defendant to prove and thus provide evidence that no violence, bullying or sexual harassment occurred at work.
The employee enjoys employment protection during a period of 12 months following the time that a complaint is submitted. The aim of this employment protection is to ensure that the procedures can run their course in peace. The employer may not terminate the employee's employment contract nor unilaterally change the working conditions, except for reasons that are not related to the complaint.
Even before the new law officially took effect, it came under fire from employers. According to the Federation of Belgian Enterprises (Fédération des Entreprises de Belgique/Verbond van Belgische Ondernemingen, FEB/VBO), the existing procedures for prevention and remedy were not sufficiently taken into account and too much emphasis was placed on formalising complaints. The law was said partly to disregard the reality of employment relations at the workplace itself. Making employment relations more legalised would, it was claimed, lead to a considerable increase in the number of court cases. The employers also protested strongly against the very detailed procedures laid down and complained about the additional administrative work.
In late 2003, some 18 months after the law came into effect, the employers made a number of observations:
The employers’ organisations feel that the law should be converted into a legal framework with the emphasis on prevention and the accountability of both employers and employees, but without elaboration of details. Only by means of consultation at company level can an adapted, integrated approach be developed, they state. The obligation to appoint a specific prevention adviser should be deleted, in the employer's view. The problem of harassment at works exceeds the topic of well-being, it is claimed, with aspects such as employment relations, work organisation and job content also playing a role.
Furthermore, according to the employers’ organisations, it is far more important to work at creating a company culture that does not allow conduct that oversteps the mark, instead of investing in expensive risk analyses. However, the employers do not deny the need for a 'curative' policy. Concrete and real cases of bullying and violence genuinely need to be dealt with. However, in the employers' view, the emphasis needs to be placed on the existing, traditional , informal channels and circuits such as the immediate superior, the company medical inspector and the trade union.
At the beginning, the trade unions were pleased with the adoption of the law. The fact that a law was chosen over a collective agreement was also approved by the unions. They saw it as important that the law should apply both in the public and the private sector, so that it could be implemented more quickly in both sectors.
The Confederation of Christian Trade Unions (Algemeen Christelijk Vakverbond/Confédération des Syndicats Chrétiens, ACV/CSC) feels, like VBO/FEB, that bullying cannot always be reduced to one individual problem, and is related to work organisation, the company culture and work pressure. 'Since the beginning of the discussions in the National Labour Council [Nationale Arbeidsraad/Conseil National du Travail, NAR/CNT], ACV/CSC has placed the emphasis on a preventive approach, preferably in the companies themselves,' says Sandra Rosvelds, an adviser at the study department of ACV/CSC. Prevention is still seen as better than a cure, and ACV/CSC is thus pressing for information, mediation and communication before starting an external complaint procedure.
The trade unions feel that conclusions reported in the national media that the law overshoots its target and above all gives rise to abuse 'are selective and premature' and are pressing for a thorough evaluation of the legislation.
According to the trade unions, the fear expressed by employers’ organisations that the law would lead to an increase in the number of court cases is unfounded. Within the Belgian social consultation model, most conflicts are usually solved by means of consultation. Only if the rights of employees are ignored are the courts called in. There is only a slight chance, according to the unions, that a victim immediately turns to a court without first calling on the internal procedure.
ACV/CSC feels that it should be investigated whether it is desirable to have claims with regard to bullying brought before the labour courts by means of accelerated proceedings. They see the most important problem of the law as being the duration of any legal proceedings. On average, proceedings before the labour court last two years.
A second trade union criticism relates to the law's employment protection provisions, which do not take effect until the employee has submitted a complaint stating reasons. The union see a danger that, as a result of interventions by the counsellor or prevention adviser and the parties’ attempts at reconciliation, the employer will already be aware of the complaint before the employment protection takes effect. According to ACV/CSC, it must be possible for an employee to enjoy employment protection from the first contact with the counsellor or adviser.
The expansion of the workers' well-being law has created the possibility of cases of bullying, violence or sexual harassment being taken to the labour court. However, an initial evaluation of the law after one and a half years shows that there is no evidence of the feared rising number of formal complaints submitted to labour courts. However, according to the employers’ organisations, the counsellor in charge of the 'primary care' and the prevention adviser who acts secondarily, are dealing with an increased number of cases that are commenced within the company. This above all creates more work pressure for the prevention advisers, who have a broader range of tasks than solely prevention of harassment.
A study carried out by Prevemed, an external organisation for prevention and protection at work that is active in 4,500 companies with a total of 51,000 employees, indicates that the law is failing. It hardly protects the real victims, creates mainly irrelevant complaints and gives rise to abuses whereby the complainant aims only to receive employment protection. If mediation or transfer to another place of work do not offer a solution, a victim can officially file a complaint. However, the figures show that since the introduction of the law Prevemed has only processed 10 such complaints. (Jürgen Oste, TESA-VUB)