In our Headlines of 2 May 2011 we discussed the Royal Decree of 28 March 2011 that determines the wage norm for the years 2011 (0%) and 2012 (0,3%). In these Headlines we also pointed out that the employer, in case the wage norm is exceeded, risks an administrative fine of up to € 5.000. Whether this fine must be multiplied by the number of employees involved in the infringement and whether this fine must be increased by applying coefficients (“opdeciemen”/“décimes additionnels”) are questions which remain unanswered in the current legislation. Hereunder we will discuss a preliminary draft law that clarifies the matter and also provides for an adjustment of the minimum and maximum amount of the administrative fine. The sanctions which are applicable in case the wage norm has been established in a (sectoral) CBA will not be discussed.
The current article 9, § 1 of the Act of 26 July 1996 regarding the promotion of the employment and the preventive safeguarding of the competitiveness (hereafter ‘the Act of 26 July 1996’) states that, when the wage norm is exceeded, the employer risks an administrative fine ranging between 250 EUR and 5.000 EUR. This article does not mention whether these amounts are subject to coefficients, nor whether the fine must be multiplied by the number of employees involved in the infringement. The article only makes reference to the Act of 30 June 1971 concerning the administrative fines (hereafter ‘the Act Administrative Fines’). Article 11 of this Act enumerates the infringements for which the administrative fine must be multiplied with the number of employees involved. However, at the entering into force of the Employment and Social Security Criminal Code, the Act Administrative Fines was abolished without the Employment and Social Security Criminal Code providing for a new provision on penalties with regard to the wage norm. As a consequence, it became – due to a lack of any legal basis – unclear whether the number of employees involved in exceeding the wage norm plays a role or not in determining the amount of the administrative fine.
In order to clarify aforementioned issues, a preliminary draft law providing for the replacement of the current article 9, § 1 of the Act of 26 July 1996, has been prepared. The new article 9, § 1 provides for lower base amounts for the sanctions, but explicitly states that the administrative fines must be multiplied by the number of employees involved in the violation of the wage norm. The preliminary draft law further states that the amounts of the administrative fines are subject to coefficients, which, taking into account the new amounts, results in a minimum fine of 150 EUR and a maximum fine of 1.500 EUR.
The preliminary draft law that is on table now, paints a clear picture of what path they want to follow. As it is a preliminary draft law, it remains possible that modifications will be made to the text.
Do not hesitate to contact us, should the discussed subject raise any questions.
