Serious occupational accidents
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Measures to prevent the recurrence of serious occupational accidents:
Prior warning: this explanation exclusively concerns the provisions of chapter XIbis of the Act of 4 August 1996 on well-being of workers in the performance of their work.
Special place in legislation - history
The measures are set out in a chapter XIbis that follows the penal provisions. This unusual place within a law stems from the original purpose of the measures. Law of 25 February 2003 on measures to strengthen prevention with regard to the well-being of workers in the performance of their work; Article 5, Belgian Official Gazette of 14 March 2003, Parl. Doc. Chamber, Doc. 50 2167/001, page 8]
No rules have been laid down the infringement of which could lead to repressive action against the employer. On the contrary, the intention was to help him to avoid a repeat of a serious occupational accident within his company or institution. After each serious occupational accident, the Directorate General of Supervision of Well-being at Work of the Federal Public Service Employment, Labour and Social Dialogue would automatically appoint an external expert who would be tasked with investigating the accident and proposing preventive measures to the employer. The expert's fee would be paid by the insurance company for occupational accidents with which the employer was affiliated. The insurance company could recover the cost of the expert's fees from the employer up to a maximum amount of EUR 300. At the same time, it was also intended to make the proposed prevention measures available to other employers with whom a similar occupational accident could occur.
By the end of 2003, however, it was established that the procedure envisaged could not be started due to a lack of sufficiently independent external experts. Numerous potential experts were in fact members of an internal or external prevention service or of an insurance company's prevention service, which could lead to incompatibility in the event of appointment.
The Programme Act of 27 December 2004 [Belgian Official Gazette of 31 December 2004, Articles 166 and 167, Parl. Doc. Chamber, doc. 51 1437/001 and 1438/002, page 96] makes up for this shortcoming by first and foremost involving the established prevention structures provided for by the Well-Being Workers Act. It is only when these structures prove to be failing or inadequate that the authorities can appoint an external expert [with the exception of a number of cases determined by the Crown, in which immediate appointment is possible].
In this context, employers involved in a serious accident must make a number of arrangements. Although the core idea concerning assistance to the employer in order to avoid the recurrence of serious occupational accidents has been retained, this means that there are once again provisions in chapter XIbis of which ignoring them can lead to criminal prosecution. Some of these provisions are not new, e.g. the employer's obligation to have the serious occupational accident investigated by his competent prevention service. However, unlike in the past, when an amalgam of various implementing provisions of the law had to be juxtaposed [current Articles II.1-6, §1, 1°, d); II.1-16, §§1 and 2, and II.7-11 of the Code on Well-being at Work] in order to be able to deduce that the employer did indeed have this obligation, it now appears in a very transparent manner from a single sentence in the Act (Article 94ter, §1 or §2, as the case may be).
Definition of serious occupational accident
A serious occupational accident is defined as an accident that occurs in the workplace itself and that, due to its seriousness, requires a specific in-depth investigation so that preventive measures can be taken to avoid a recurrence. The Crown determines the criteria on the basis of which the occupational accident is regarded as a serious occupational accident.
- It must be an occupational accident that occurs in the workplace itself. There is a clear difference here with the occupational accidents specified in the law of 10 April 1971 on accidents at work, which, in addition to accidents in the actual workplace, also covers accidents similar to those in the workplace, such as accidents on the way to work.
This latter type of accident must not be confused with other types of accidents on the road. Bus or lorry drivers, or business representatives, for example, travelling to a location with a vehicle as part of their employment contract with their employer, are in their workplace throughout the period of travel and throughout their presence in these locations. If they suffer a serious accident, this is then a serious occupational accident in the sense of the Act of 4 August 1996.
- It must concern a serious occupational accident that requires a specific detailed investigation due to its seriousness. This refers to the social background for chapter XIbis of the Act [Doc. Parl. Chamber, Doc. 50 2167/001, page 7]. A self-respecting society cannot accept that accidents that cause serious injuries to workers and could have been avoided, receive no or insufficient attention.
- The description "that, due to its seriousness, requires a specific in-depth investigation" is very broad. This is why the law makes the Crown responsible for setting the criteria that define serious occupational accidents more accurately. These criteria are set out in Article I.6.2 of the Code on Well-being at Work. Accidents with a minimum incapacity for work of at least one month are no longer the criterion. After all, this group also includes accidents with rather innocent causes, for example, the person who trips over his own feet or who, absent-mindedly, puts his hand between a closing door. It makes no sense to still pay attention to such accidents at work against which the employer can hardly take preventive action. On the other hand, the intention is to concentrate on those accidents that can be prevented from taking action to prevent their recurrence. These are the accidents which cause injuries and which are due to the failure or inadequacy of the material prevention measures [Parl. doc. Room, Doc. 50 2167/001, pages 3 and 10], for example, a machine guard that is missing or that no longer functions properly.
The procedure can be found in the Documentation > Procedures and Forms > Procedure in the event of a serious accident tab.
Active standby duty for reporting and investigating very serious occupational accidents outside office hours
On October 1, 2020, an active standby duty within the Division of Regional Supervision of the Directorate General of Supervision of Well-being at Work became operational. The purpose of this standby duty is to enable immediate reporting by telephone to the supervising official of very serious occupational accidents occurring outside office hours on weekdays, Saturdays, Sundays, holidays, bridge days and during the period of collective closure between Christmas and New Year.
By very serious occupational accident is meant an accident within the scope of Articles I.6-2,1° and I.6.2,2°a) of the Code on Well-being at work (Code), in particular:
- a fatal occupational accident;
- an occupational accident, the occurrence of which is directly linked to an event that deviates from the normal performance of work and which appears on the list included as Annex I.6-1 of the Code, available in French (Annexe I.6-1 Liste des déviations visées à l'article I.6-2, 2° (PDF, 9.89 KB)) and Dutch (Bijlage I.6-1 Lijst van de afwijkende gebeurtenissen bedoeld in artikel I.6-2, 2° (PDF, 76.84 KB)), or to the object involved in the accident and which appears on the list included as Annex I.6-2, available in French (Annexe I.6-2 - Liste des agents matériels concernés par les déviations, visés à l'article I.6-2, 2° (PDF, 10.43 KB)) and Dutch (Bijlage I.6-2 - Lijst van de bij de afwijkende gebeurtenis betrokken voorwerpen bedoeld in artikel I.6-2, 2° (PDF, 78.75 KB)), and which has given rise to a permanent injury.
In application of Article I.6-3 of the Code, such a very serious occupational accident must be reported immediately by the victim's employer to the supervising official, by any technologically suitable means, giving the name and address of the victim's employer, the name of the victim, the date and place of the accident and its probable consequences and a brief description of the circumstances.
In order to be able to contact the inspector of the standby duty to report a very serious occupational accident 2 general call numbers were created:
For Dutch: 02 235 53 00
For French: 02 235 55 44
During standby periods this emergency number will be automatically forwarded to the cell phone number of the inspector on duty of the language role in question. During office hours this number can also be used to report serious accidents at work, whereby one will be referred via a selection menu to the territorially competent regional directorate.
Depending on the seriousness of the occupational accident and in particular on the instigation of the judicial authorities, it will then be decided whether the inspector will go to the site of the accident to start an investigation and to check whether appropriate measures have been taken to guarantee the safety and health of the workers pending the substantive investigation by the competent prevention service.
This regulation is not applicable to very serious occupational accidents, which occur on the sites of the so-called Seveso companies. For these, the Directorate of the Prevention of Major Accidents must be notified as before on the existing telephone number 02 233 45 12.
In practice, there are two circumstances in which the officials responsible for supervision can appoint experts:
- the prevention culture is poor or absent at the employer in question;
- the independent examination of the serious occupational accident required significant expertise in a limited area.
The Crown sets the conditions which experts must meet in order to be appointed. [Royal Decree of May 28, 2003 implementing chapter XIbis of the Act of August 4, 1996 on well-being of workers in the performance of their work, as far as experts are concerned].
The administration must prepare a list (Article 94bis 2°) to be able to use experts with the appropriate specific skills when they need to appoint one. [Parl. doc, Chamber, Doc. 50 2167/001, pages 6 and 7]
The experts examine the serious occupational accident and put forward the appropriate recommendations for avoiding a recurrence of the accident, in accordance with specifications drawn up in advance. [Parl. doc, Chamber, Doc. 50 2167/001, pages 6 and 7]
They provide their observations and recommendations in a report which they give:
- to the officials responsible for monitoring;
- to the employers or self-employed workers involved in the serious occupational accident;
- to the insurance company with which the employers involved in the serious occupational accident are affiliated for insuring their workers against occupational accidents or to the institutions [(such institutions are, for example, the Fund for Occupational Accidents or a Federal Public Service (which insures itself)] that act in the place of these insurance companies, if the latter are not involved.
The experts shall be remunerated for such services by the latter insurance companies or institutions on presentation of a claim. The Crown sets the amount of the fees (Article 94octies, 4°).
If a single employer is involved, his occupational accident insurance company or the institution operating in its place will pay the full amount of the fees. If several companies are involved in the accident, the insurer of each business pays their fair share of the fees, in accordance with the fee arrangement in the inter-business agreements, as stated in Article 94ter, §2. If no such arrangement exists, the insurer of the company that had to include this arrangement in the agreement will pay the full amount of the fees.
The insurance companies or institutions that have paid the fees or part of the fees to the experts can claim the entire amount paid from their policy-holders.
- Firstly, with the prevention advisor of the internal and/or external service for prevention and protection at work.
- Secondly, with the competent regional directorate for Supervision of Well-being at Work.
- Questions on the interpretation of the legislation: in writing to the Directorate-General for Humanisation of Labour.