New obligation for the sector of construction sites: electronic attendance recording

There are two changes with regard to the obligations for the sector of construction sites:

• The declaration of work since 1 January 2014 (see our Infoflash on this subject of 12 March 2014);
• The recording of attendance from 1 April 2014.

The second obligation is examined further in this Infoflash.

The Act of 8 December 2013 embodies the obligation of attendance recording for those present at temporary or mobile construction sites. As a measure against fraud, it should be clear who is present at the construction site, when, for whom work is carried out and under which status (employee or self-employed worker).

'Temporary or mobile construction sites' are understood to mean any place where the activities are performed specified in Article 30bis § 1, 1 ° a) of the Act of 27 June 1969 revising the Decree-Law of 28 December 1944 on social security for workers, that is to say: hydraulic, maritime and river works, earthworks, demolition work, masonry and concreting works, laying of cables and various pipelines, pointing, carpentry, joinery and metal joinery work, roofing and waterproofing works, thermal and/or acoustic insulation work, placement of pre-cast units, placement of wooden objects or products, glazing work, plastering work, painting, upholstering and wall papering work, refurbishment work, stone and marble works, floor and wall covering work (except wood), sanitary works, central heating, plumbing and zinc work, installation of pipes and drains, installation of scaffolding, metal constructions and metal engineering works, roadworks, non-metal engineering works, railway engineering works, electrical engineering works, grounds landscaping and maintenance, agricultural work, cleaning and upkeep work, special installations. 

This new obligation only applies to works on construction sites with a total value that is equal to or greater than € 800,000 excluding VAT.

The ONSS, the National Social Security Office (NSSO) specifies on its website 'checkin@work' (https://www.socialsecurity.be/site_fr/employer/infos/checkinatwork/what.htm) that the amount of € 800,000 excluding VAT is determined by taking into account all budgeted works performed by contractors on the basis of contracts with a single client, even if the works are subdivided into several lots.  

The presence of the following persons on one of the construction sites mentioned above must be recorded:

• employers and self-employed workers who carry out activities as a contractor or subcontractor during the project execution;
• workers who carry out tasks for the employers mentioned above;
• the project supervisor responsible for the design, execution and/or supervision of the execution;
• the coordinator for safety and health matters at the project preparations stage and/or during execution of the project.

The following data must be recorded:

• the identification data of the natural person (national number or number of receipt notice L1 for foreign workers (self-employed worker or employee));
• the address or description of the geographical location of the construction site;
• the capacity in which the person concerned carries out his activities at the construction site (employee, self-employed worker, project supervisor, employer, coordinator, ...);
• the identification data of the employer when the person doing the recording is a worker (company number);
• when the person is self-employed, the identification data of the natural or legal person by whose order the work is being carried on;
• the identification number of the declaration of work in accordance with Article 30bis;
• the time of recording.

For each temporary or mobile construction site concerned, the presence of each natural person described above should be recorded:

1. either by means of an electronic recording system comprising:
   • a database managed by the NSSO on behalf of the FPS Employment, Labour and Social Dialogue;
   • a recording device for collecting data 'online';
   • a means of recording to prove the identity of the person doing the recording (electronic identity or residence card)
2. or by means of another system (= alternative system) used by or made available to subcontractors insofar as this device provides equivalent guarantees to the electronic recording system described above. This alternative system allows a remote, preliminary recording via the interface provided by the NSSO.

The project supervisor responsible for the execution must make the recording system described under a) available (that is to say, deliver, install and ensure the proper functioning of the recording device) to the contractors that provide services to him, unless agreed by mutual consent to use the alternative system.

The contractor himself must make it available to his subcontractors and so on in the chain of subcontracting.

The employer is responsible for the recording by his workers: he must provide them with the means of recording that is compatible with the recording device used at the construction site.

The project supervisor responsible for the execution, the contractor or subcontractor who calls on a self-employed worker ensures that this means of recording is delivered to this self-employed worker.  

When temporary workers are brought in, this obligation rests with the user and not with the temporary work agency.

Electronic attendance recording can be done at the construction site or not. If recording is not done at the construction site, the alternative recording system should offer the same guarantees as on-site recording.

Attendance recording must be immediate (that is to say before the person concerned enters the construction site) and daily.

It may be anticipatory (up to 31 calendar days before the presence of the person concerned at the construction site) if done by an alternative system, as referred to above.

The NSSO sends a receipt notice to the recording device after recording the data.

Social inspectors and inspectors of social security bodies can consult the data contained in the recording system, exchange them and use them as part of their mission.

The inspection services that check that the attendance recording was done correctly are the Directorate General for Supervision of Social Legislation and the Directorate General for Monitoring of Well-being at Work of the FPS Employment, Labour and Social Dialogue, the Directorate General Social Inspection of the FPS Social Security, the NSSO, the National Employment Office (ONEm), the Fund for Industrial Accidents, the Fund for Occupational Diseases, the National Institute for the Social Security of the Self-Employed (INASTI), the National Institute of Health and Disability Insurance (INAMI), the National Office for Annual Leave (ONVA), the National Office for Family Allowance (ONAFTS), the National Pensions Office (ONP), the NSSO of the provincial and local administrations (ONSS-APL).  

May be subject to sanctions (criminal or administrative fines):

• any person who does not record his presence immediately and daily;
• the project supervisor responsible for the execution, the contractor or subcontractor who fails to meet his obligations;
• the employer who does not provide a means of recording to his workers that is compatible with the recording device used at the construction site. 

The sanction may be increased if the breach committed resulted in health problems or an industrial accident for a worker.

The fine is multiplied by the number of people affected by the breach.

Attendance recording will be mandatory from 1 April 2014.

The sanctions come into force on 1 October 2014.

Sources:

Act of 27 December 2012 establishing electronic attendance recording at temporary or mobile construction sites, Moniteur belge 31.12.2012;

National Labour Council, advice No. 1875 of 26 November 2013, Introduction of an electronic attendance recording system at temporary and mobile construction sites - Implementing Royal Decrees;

Act of 8 December 2013 amending article 30bis of the Act of 27 June 1969 for the revision of the Decree-Law of 28 December 1944 on social security for workers and for the adaptation of the provisions of the Act of 4 August 1996 with regard to the well-being of workers in the performance of their work which regard the preliminary declaration and the recording of attendance with reference to temporary or mobile construction sites, Moniteur belge 20.12.2013;

Royal Decree of 11 February 2014 implementing Articles 31ter, § 1, § 2 and 3, paragraph 1, 31quinquies, paragraph 4, 31sexies, § 2, paragraphs 3 and 4 and 31septies, paragraph 3 of the Act of 4 August 1996 with regard to the well-being of workers in the performance of their work and Article 13 of the Act of 27 December 2012 establishing electronic attendance recording at temporary or mobile construction sites, Moniteur belge 21.02.2014;

Royal Decree of 11 February 2014 implementing Articles 31ter and 31quater of the Act of 4 August 1996 with regard to the well-being of workers in the performance of their work and amending the Royal Decree of 28 August 2002 designating civil servants responsible for monitoring compliance with the Act of 4 August 1996 with regard to the well-being of workers in the performance of their work and its implementing decrees, Moniteur belge 21.02.2014.

Auteur : Anne Ghysels

26-03-2014