Katholieke Universiteit Leuven
DE COEN, A., SCHOOREEL, T., VALSAMIS, D., DE GROOF, S., HENDRICKX, F. en SELS, L., Haalbaarheidsstudie omtrent de organisatie van het loopbaansparen in België, IDEA Consult NV, 2016, 59 p.
Start February 2016, end:September 2016
In this research it is investigated whether a system of time saving accounts where working time can be saved to be recuperated within a few or more years, could be feasible in Belgium.
LAMBERTS, M., PACOLET, J., HENDRICKX, F., TERLINDEN, L., VANORMELINGEN, J. en DE GROOF, S., Versterking van het arbeidsvolume in de social profit sector in Vlaanderen, Leuven, HIVA-KU Leuven, 2014, 411 p.
DE GROOF, S. en HENDRICKX, F., Versterking van het arbeidsvolume in de social profit-sector in Vlaanderen - Uitbreiding PC 329, Leuven, KU Leuven, 2014, 35 p.
Start August 2013. End: September 2015
In the legal part of this research, it is investigated whether the legal potential is fully and correctly used regarding working time flexibility in the social sector in Belgium.
Professional secrecy, cooperation and social responsibility
Researcher: Anne-Sophie Versweyvelt; Promoter: Johan Put; Period: 01/09/2016 - 28/02/2018
The cooperation and exchange of information between the various actors in the care sector contributes to an accurate and integral approach of the client or patient. However, cooperation and networking is not self-evident and contributes a number of issues related to the professional secrecy of social workers and healthcare workers. The research aims to analyze and clarify the current meaning of the professional secrecy of social workers and healthcare workers. From a legal point of view, focus is given to the basic principles of professional secrecy and the social responsibility of social workers and healthcare workers on the one hand, and the need of cooperation and the demand for further alignment with the judiciary on the other hand.
The obligation of care providers in the disability sector and the youth sector to admit and treat clients
Researcher: Anne-Sophie Versweyvelt; Promotor: Johan Put; Period: 01/11/2015 - 30/04/2016
The research aims to analyze and clarify the legal framework concerning the (possible) obligation of care providers in the disability sector and the youth sector to admit and treat clients. The focus lies on the legal aspects attached to the obligation of carers to admit and treat clients (possibilities/risks). The position of both public and private care providers is dealt with. In addition, attention is paid to aspects of a civil, penal and human rights nature as well as to the relationship between the government and the client.
Firstly, a general legal framework is elaborated. At that stage, the goal is, on the one hand, to gather legal instruments that might serve as a possible basis for the establishment of an obligation of care providers of both sectors in question to admit or treat clients and, on the other hand, to measure the impact of the latter on the position of such providers. Principal method used is the traditional legal research method, being the analysis of legislation, case law and doctrine. This is supplemented with the study of relevant documents provided by the commissioner, such as circulars, case law, inspection reports, information notes etc. relative to the topic with which the present research is concerned.
State of the art on juvenile delinquency
Researchers: Helene Asselman, Eline Coutteel, Katrien Herbots, Nikki Sporen & Anne-Sophie Versweyvelt; Promotor: Johan Put; Copromotors: Stefaan Pleysier (LINC – KU Leuven), Rudi Rosse en Lieve Bradt (UGent), Jenneke Christiaens en Els Dumotier (Vrije Universiteit Brussel) in samenwerking met Kenniscentrum Kinderrechten vzw; Period: 01/07/2015 - 30/09/2015
With the sixth State Reforms, Flanders became largely responsible for addressing juvenile delinquency in a new law on juvenile justice. As a source of inspiration to prepare this law, the Flemish government wished to involve findings of recent academic research on the matter. This analysis provides an overview of the current academic state of the art on juvenile delinquency. Following aspects are covered: the Flemish context (report 1), an analysis of the phenomenon of juvenile delinquency and possible explanations (report 2), a review of existing measures on a national and international level (report 3), the children’s rights legal framework on juvenile delinquency (report 4) and a comparison of some juvenile justice systems in Europe (report 5).
The ISR wrote report 4 and report 5, in collaboration with the Children’s Rights Knowledge Centre (KeKi).
Report 4 contains a description of the legal framework of children’s rights relevant to the prevention, description and response to juvenile delinquency. Out of a summary of the main relevant children’s rights instruments, seven international and European instruments were selected and analysed for their significance in addressing juvenile delinquency. The text visually distinguishes between legally binding texts (hard law) and non-legally binding texts (soft law) by the use of a lighter, gray print for the non-legally binding instruments.
Report 5 compares five foreign legal systems on juvenile delinquency: Germany, the Netherlands, Northern Ireland, Austria and Scotland. The country reports were necessarily limited to a descriptive summary. The reports contain information on the general explanation of the juvenile delinquency system, the designation of specific characteristics and model choices, possible interventions, legal safeguards, the relationship with the youth care system and an overview of the sources of legislation and discussions.
(Im)possibility to extend the smoking ban
Researcher: Sabien Hespel, Sien Peeters, Sofie Smets en Eline Coutteel;
Promotor: Prof. I. Samoy; Copromotors: Prof. Sophie Stijns, Prof. Johan Put, Prof. Ingrid Boone, Prof. Stefaan Pleysier, Prof. Frank Verbruggen, Prof. Koen Lemmens, Prof. Stefan Sottiaux, Prof. Herman Nys, dr. Tom Goffin, Prof. Frank Hendrickx, Prof. Steven Lierman;
Period: 05/02/2014 - 01/09/2015
Research has demonstrated that (passive) smoking is harmful for health and causes diverse types of cancer. Belgium has adopted legislation that limits the possibility to smoke in public places and working environments. There are however gaps in this legal framework. This research project aims to investigate from the perspective of different areas of law whether an expansion of the smoking ban can be enforced based on current legal instruments and whether the development of a new legal instrument is possible and desirable.
From the perspective of youth law and children’s rights specific attention is paid to the (im)possibility and desirability of a ban on smoking in the presence of children. It will be investigated whether such a ban can be based on the provisions of the Convention on the Rights of the Child and/or if smoking in the presence of children can lead to child protection interventions. In addition, the question will be addressed whether it would be desirable to adopt a new legal instrument that punishes smoking in the presence of children and whether such a ban would constitute a breach of article 8 ECHR.
Policy Research Centre for Welfare, Public Health and Family – Juridification & Cooperation
Researchers: Lesley Bogaerts, Ruth D’haese, Maarten Janssens, Hanne Op de Beeck, Anne Tans & Leen Van Assche; Promotor: Johan Put; Period: 01/01/2012 - 31/12/2015
Juridification of the care sector
Both from a legal and a care perspective, the relation between law and care as well as the functions that law can assume are highly debated. This entails (perceived) tensions between legal, medical, pedagogical, ethical and other perspectives. This phenomenon is denoted by the catch-all term ‘juridification’.
The ‘conceptual’ part of the SWVG-research program includes an exploratory study, containing both a literature study and an empirical research component. The literature study aims to clarify not only the concept of juridification, but also its backgrounds, manifestations and the pros and cons, with a particular focus on the care sector. The findings of this literary study are reviewed and supplemented by empirical research (five focus groups with the principal stakeholders).
Cooperation in care
In this project, possible and existing intrasectoral (within one sector of the broader care sector) and intersectoral (between different sectors of the broader care sector, for instance between youth care and mental health) types of cooperation are inventoried, explained and applied to the Flemish care sector.
In recent Flemish care policies, notions like ‘transversality’, ‘integrated care’, ‘networks’, ‘trajectories of care’, etc. have become main concepts. The most clear and extensive example of this tendency is the development of ‘Integrale Jeugdhulp’, a network in which different youth care services have been closely integrated. As well, in other sectors of care, similar integration initiatives have been organized. The goal of these efforts is to come to a system of care that more strongly aligns with the different individual needs of clients, by transcending walls that historically developed between organizations targeting different client groups. Traditionally, these efforts mainly consist of stimulating cooperation, introducing different types of client budgets and dismantling or integrating certain sectors. This idea of cooperation, however, raises a number of questions based on existing differences in traditions, vision, power balances, finances, policy-making procedures etc. between the different sectors and organizations. The current research project, in which possible and existing types of intra- and intersectoral cooperation are studied, is inspired by these questions. More specifically, the following goals are targeted:
1. To build on theoretic knowledge regarding the different dimensions defining intra- and intersectoral cooperation in care;
2. To build on theoretic knowledge regarding the different types of cooperation that can be constructed based on these dimensions;
3. To gain insight in existing types of cooperation in the Flemish care system;
4. To gain insight in the concrete consequences of these types of cooperation for care system outcomes.
Law enforcement and sanctioning in the field of social services: sanctioning and access to justice
Researcher: Ruth D’haese; Promotor: Johan Put; Period: 01/12/2013 - 30/11/2014
This research concerns the study of law enforcement in the field of social services. Law enforcement is a broad concept which includes not only the supervision of social regulation, but also the potential of the government to sanction a breach of regulation. There is a vast range of possible sanctions to be found in the social regulation, ranging from different administrative sanctions to criminal sanctions. However this variety of possible sanctions is scattered over the different social care sectors. The sanctions differ depending on the concrete regulations which have been breached. The same goes for the legal safeguards surrounding the sanctioning procedure and the possible actions (objection or appeal procedures) to the disposal of legal subjects.
This legal diversity and dispersion is a feature of both the sanctioning as well as the dispute regulation procedure and highlights the lack of an inter-sectoral approach. What is missing, is the development of a coherent, legally founded approach to both the sanctioning procedure, encompassing both the choice for a (specific kind of) administrative or criminal sanction and the legal safeguards surrounding the imposition of the sanction, as well as the dispute resolution within the field of welfare. Wherever possible a more uniform legal framework is desirable.
Two consecutive research projects aim to achieve this goal. The first project concerns the study of the different administrative and criminal sanctions which may be taken in case of a breach of regulation. The second concerns the way legal subjects are guaranteed access to objection and appeal bodies. Both are structured the same way. First, an inventory of the existing provisions on the various possible sanctions, objection and appeal procedures is made as well as the legal safeguards surrounding these, thus offering an exploration and analysis of the current situation. Then is a theoretical framework is constructed. This frameworks aims to offer a sound and well-considered choice as to how the different possible sanctioning, objection and appeal procedures can or should be constructed. The confrontation of the current situation and this theoretical framework should allow to highlight inadequacies in the existing regulation. Final step is the formulation of recommendations to allow for a more efficient and effective enforcement in the field of social services.
Title Evaluation of the Antwerp pilot project ‘the Courage Protocol’ - An experiment regarding the right to speak and case related consultation in alarming situations of child abuse
Researcher(s): Hanne Op de Beeck; Promoter: Johan Put; Copromoters: Stefaan Pleysier & Koen Hermans; Period: 01/09/2012 - 31/12/2013
This research project aims to evaluate the Antwerp pilot project ‘the Courage Protocol’ (in Dutch: ‘Protocol van Moed’), which is an experiment considering the right to speak as well as case related consultation in alarming situations of child abuse.
‘The Courage Protocol’ aims to enable consultation between care workers, police and prosecutors in concrete cases of child abuse; more specifically cases in which one of the involved actors considers an exchange of information between the justice and care system beneficial. By implementing consultation platforms, systems to exchange information, risk taxations and adapted procedures, the Courage Protocol aims to improve collaboration between these three actors. The aim of this evaluative research is to investigate the value of the Courage Protocol in assessing such complex cases of child abuse. To do so, a mixed method design is developed, including an analysis of relevant documents, a quantitative analysis of registered cases, group interviews with stakeholders and observations followed by an analysis of concrete cases.
The development of a legal framework for the Flemish Care Inspectorate
Researcher: Maarten Janssens; Promoter: Johan Put; Period: 01/11/2012 - 31/08/2013
The operation ‘Better Administrative Governance’ reshaped the Flemish administration to a structure consisting of homogenic policy areas, among them the policy area of Welfare, Public health en Family. In this policy area, four existing inspectorates merged into a single agency, the Flemish Care Inspectorate, which supervises the application of regulation in this policy area by carers, care organisations and users.
For this merger to yield full rewards, a unified supervisory framework should be at the disposal of the Flemish Care Inspectorate, offering it a clear mandate and clear powers. At present, such framework does not exist as the rules for supervision are dispersed over sectoral, intersectoral, federal and regional legislation.
This research project entails the development of a unified supervisory framework for the Flemish Care Inspectorate. This framework should also take into account the (European) rules on privacy, professional confidentiality, medical secrecy, patient and user rights, etc.
Constructive juvenile justice: concrete recommendations based on the principles of the Werkgroep Jeugdsanctierecht
Researcher: Sabien Hespel; Promoter: Johan Put; Period: 01/02/2013 - 31/05/2013
The Flemish Werkgroep Jeugdsanctierecht (Working Group ‘Youth Sanction Law’) was established with the objective to organize consultations on the issue of juvenile justice between academics, lawyers, judges, consultants and service providers. In 1994, and updated in 2011, the Working Group presented five principles that should be at the core of juvenile justice legislation: (1) the responsibilities of youngsters, (2) legal safeguards for youngsters, (3) constructive sanctioning, (4) complementarity of rehabilitation, care and justice and (5) detention as a last resort.
Although the Werkgroep Jeugdsanctierecht evaluated the current Belgian juvenile justice legislation in the light of its principles in 2011, these five principles are at present insufficiently precise to serve as concrete recommendations for the legislator. The purpose of this research is to formulate a clear and coherent proposal for future constructive juvenile justice legislation, drawing upon the principles and insights of the Working Group. Through intensive consultations with the members of the Working Group and through the integration of insights from existing literature, recommendations will be formulated on several topics: the scope, potential interventions and diversion, the procedure and judicial organization...
Dealing with risks by professionals active in private non-profit organizations in the childcare and youth sector
Researchers: Katrien Herbots, Ellen Van Grunderbeek & Eveline Ankaert; Promoter: Johan Put; Period: 01/11/2011 - 31/05/2012
This study examines the legal framework regarding the liability of private non-profit organizations and their employees in the childcare and youth sector. Aspects of civil and criminal liability, and inextricably linked insurance law aspects, for private non-profit organizations and their staff in the areas of child and youth services is clarified. Moreover, it is the intention to analyze and explain the legal framework through a problem-oriented approach.
Policy Research Centre for Welfare, Public Health and Family – The market of care & Government instruments
Researchers: Maarten Janssens, Vanessa Verdeyen & Geraldine Fobelets; Promoter: Johan Put; Period: 01/01/2007 - 31/12/2011
Within the continuously growing domain of Welfare, Public Health and Family, the Flemish Government has requested for a broad-scale and comprehensive research program. Within this framework, a ‘policy research centre of welfare, public health and family’ (further SWVG) was approved for the period 2007-2011; the Institute of Social Law is a partner is this consortium. SWVG’s goal is to support the Flemish minister in pursuing a though, effective, innovative, and inclusive policy, and to do this by means of scientific research results. SWVG realizes this by means of a multidisciplinary and coordinated perspective, which allows to get grip on the complex nature of contemporary welfare, health and family matters. Within the research programme, the Institute carries out two research projects, one on the concept of ‘free market’ in the field of social welfare services, and the other on government instruments in the care sector.
The market of care
This research deals with the place of market forces and freedom of choice in the provision of welfare and healthcare. In this, special attention is given to EU pressure towards more liberalisation and to the wish of cliënts to participate in decisions concerning the planning of care. This encompasses a legal and policy comparison of developments at both the supplyside (diversification and the use of market forces) and the demandside (freedom of choice and ‘tailor-made’ care). Additionally, the European legal framework is taken into account.
These questions are looked into from a strongly comparative perspective (this research studies the way in which they are dealt with in Germany, England and Flanders) and with the residential care for the elderly as its field of elaboration.
Instruments of Government Control in the Care Sector
This research focuses on the relationship between the government and institutions involved in social care policy. This relationship is marked by an overload of regulations to direct the public and private institutions involved towards a correct implementation of regulations and quality care. This research reviews the legal value and proper use of the legal instruments used to direct the social services.
ePod - General & Participation rights of children in cases of separation
Researchers: Katrien Herbots & Elke Roevens; Other researchers: Rachid Baitar (KU Leuven), Sietse Bracke (UGent), Ruben Brondeel (UGent), Lut Daniels (UGent), Jan De Mol (UGent), Olivia De Smet (UGent), Ruben Hemelsoen (UGent), John Humblet (UGent), Sofie Maes (UGent & KU Leuven), Lies Parrein (UGent), Joost Vandenbossche (UGent), Ann Vanderhaegen (UGent & KU Leuven), Anne Wietzker (UGent); Promoter: Johan Put; Other promotors: Ann Buysse (headpromoter - UGent), Peter Rober (KU Leuven), Koen Schoors (UGent), Piet Taelman (UGent), Dirk Van de gaer (UGent), Gerd Verschelden (UGent); Period: 01/11/2007 - 31/10/2011
ePod - General
‘ePod’ is the abbreviation of ‘An Evidence-based Policy for the Optimisation of Divorce trajectories in Flanders’.
Flanders has experienced soaring divorce rates that have elicited policy and research concerns. In the present project, complementary to the traditional line of ‘cause-effect relationship’ research, focus is not only on outcomes, but also and in particular on processes set in motion by divorce, respecting the self-determination of divorcing partners and their children. So, the research adopts a ‘developmental’ perspective, considering divorce as a process, a transition, and stressing the transformation and change it evokes in parents, children and the parent-child relationship. As the divorce patterns are changing, the divorce profession is too. An improvement of practice and assessment standards can and should be made as the discipline evolves.
Central research question is what determines the post-divorce quality of live, and how can we influence the process so that the loss of quality of life for parents and children will be as little as possible.
The strategic aim of the research is to move the beacons of our understanding of how we divorce and change the divorce profession for the better in the process.
The focus of this project on the divorce process (from input over divorce trajectory to final output in terms of quality of life) therefore requires fundamental multidisciplinary (psychosocial, legal en economical ) research.
Participation rights of children in cases of separation
Since the adoption of the UN-Convention on the Rights of the Child (CRC) in 1989, one of the fundamental rights, namely the child’s right to participation, is acknowledged.
In particular, the right to participation will be profoundly analyzed in order to enhance the realization of the children’s participation rights, particularly in situations where the child’s caregivers are separating from each other. Indeed, the activities and decisions related to the separation have a deep impact on children’s lives.
Besides creating a framework regarding child participation the study will map distinct perspectives of the ‘key players’, i.e. the children .themselves, parents and separation-related professionals.
Harmonisation of an intersectoral framework (concepts and procedures) in the care sector
Researcher: Vanessa Verdeyen; Promoter: Johan Put; Period: 01/09/2010 - 30/09/2011
Departing from the legal analysis of the government measures and juridical instruments in the social care sector (made in prior research), a new legal framework is proposed. This framework works with harmonized instruments and procedures in the field of social care policy.
Applied research into the practice of inspection and law enforcement in the field of social services
Researcher: Ruth D’haese; Promoter: Johan Put; Period: 01/09/2010 - 30/11/2010
The different - public and private - actors responsible for the supply of social care and assistance need to focus on the quality of care. The government, charged with the (constitutional) responsibility for the policy on care and its implementation, should encourage this. One of the guiding instruments that is at the public authorities’ disposal to achieve this, is the supervision of the social care institutions and facilities.
The project "Better Administrative Policy" led to an organizational unification of (among others) the inspectorate responsible for the surveillance of the various social care institutions and facilities (i.e. the Care Inspectorate). At the basis of this unification was a vision of the Flemish Government of homogeneity, optimization of organization and functioning and quality enhancement. The full achievement of these objectives requires that the unified Care Inspectorate can rely on a uniform regulation, that provides a clear framework of its available powers and possibilities. This would allow the agency to fully play its role as a quality-enhancing actor in the welfare and health sector. This however does not appear to be the case. The provisions about the supervision and enforcement of social services are fragmented across sectoral, intersectoral, regional and federal regulations. Moreover, the agency has to take the impact of the adjacent (European) privacy and confidentiality regulations, patient and client rights, etc. into account.
This multiplicity of regulations not only causes legal uncertainty for the (prospective) users and social care institutions and facilities, it also causes difficulties for the officials charged with supervision. This research aims to tackle these issues, by highlighting two of the most pressing real-life problems, namely the question of liability and the protection of personal data. The aim is to offer a clear explanation about the regulations relevant to the selected topics and their practical implications with respect to (the activities of) the Care Inspectorate.
The study "Care Inspectorate and liability" examines both the civil (contractual and extra-contractual) liability of the (individual) inspector and the government, as well as their criminal liability, in addition to the handling of a number of related issues.
The study "Care Inspectorate and the processing of personal data" examines the applicability of and the substantive requirements and obligations imposed by the Processing of Personal Data Act and their practical implications for the actions of the Care Inspectorate.
Evaluation of the suitability assessment in the framework of international adoption
Researcher: Tim Stroobants; Promoter: Johan Vanderfaillie (VUB); Copromoter: Johan Put; Period: 01/09/2009 - 31/10/2010
This research project evaluates the suitability assessment of candidate adoptive parents in the case of international adoption.
Inspection and law enforcement in the field of social services: towards a juridical framework
Researcher: Ruth D’haese; Promoter: Johan Put; Period: 15/12/2008 - 31/08/2010
The legal foundations of the supervision conducted by the inspectorate in the field of social services are fragmented across a large amount of rules, sectoral and insectoral as well as federal and regional. In addition, (european) rules concerning privacy, the duty of professional confidentiality, the medical confidentiality, rights of patients and clients need to be observed in the context of (supervision of) assistance. This legal fragmentation causes legal insecurity and sometimes even inequality, for the (prospective) client as well as for the social services.
The recent integration of inspection in the field of social services in one inspectorate has only highlighted this dispersion and the need for uniformity. Differences can only remain insofar as they can be justified. Central is an equal protection under the law of clients, including equal access to care of a uniform quality across the various sectors. However, the importance of legal security and equality extends beyond solely clients; it serves also the social care institutions, subject to the supervision of the inspectorate. Moreover, the interest of the society at large in supervision and law enforcement has increased. Most striking in this respect is the request for communication of the generalized results of inspections or the request for an active disclosure of reports concerning social care institutions.
This research intends to offer an analysis and evaluation of the current situation, to formulate the basic principles of supervision and law enforcement, draw up proposals for the development of a more uniform judicial framework and eventually, the treatment of a number of special issues.
The research contains the following:
1. Concept of enforcement
2. Inventory and analysis of current regulations in the field of social services on 'enforcement', esp. surveillance
3. General (legal) principles for supervision
4. Development of a legal framework for supervision in in the field of social services
Principal method used is the traditional legal research method, being the analysis of legislation, case law and doctrine. This is supplemented with the study of general literature on enforcement and surveillance, and an analysis of relevant policy documents.
Sense in transnational transport in the EU (SENSE)
Start 01/12/2016, end: 31/08/2019
Erasmus+ Project (no doctorate)
The “SENSE” Strategic Partnership project, in which universities of 4 EU Member States are involved (The Netherlands, Luxemburg, Poland and Belgium), aims to contribute to solving problems in the field of EU transnational road transportation, by providing adequate understanding of the legal setting, both at national level and at EU/comparative level. The partners will develop high quality education modules about this subject. In view of this, SENSE will make an inventory of existing law and regulations at national level. It will also examine the problems and solutions in the field of regulations in the transport sector within the participating countries. It will analyse the national rules and regulations applicable; the role of the social partners and/or other strategic partners; over a time period of (at least) five years all national case law and all relevant publications; all legislative efforts undertaken; and all national solutions to these problems that are in place or contemplated. In addition, it will analyse the role of EU fundamental freedoms; of private international law; of the Posting of Workers Directive 96/71/EC (including enforcement Directive 2014/67/EU); of the coordination of social security systems and of European social dialogue in the transport branch.
Vrije Universiteit Brussel
“De rechten van semi-agorale sportbegeleiders” (original title)
Joris De Wortelaer en Guido Van Limberghen
This study develops a specific legal framework for the activities of coaches, referees and others, to be distinguished from professional activities and volunteer work.
Completed research: 2013 and 2016
“Misbruik- en fraudebestrijding in het sociaal recht: recente evoluties” (original title)
Department of Public Law (Vrije Universiteit Brussel)
This study investigates legal measures aiming at the enforcement of Belgian labour and social security legislation and their compliance with EU Law.
Completed research (2013-2015): Guido Van Limberghen (ed.), Misbruik- en fraudebestrijding in het sociaal recht: recente evoluties, Antwerp, Intersentia, 2015, 269p.
“Studie over een puntensysteem in het pensioenstelsel voor zelfstandigen” (original title)
Guido Van Limberghen en Kris Boudt
This study aims to understand to what extent a recent pension reform proposal might affect the Belgian pension system for the self-employed.
Afgerond onderzoek: oktober 2017
Onderzoek naar een statuut voor semi-agorale arbeid voor de non-profit sector en uitwerking van een wettelijke regeling ter zake
Joris De Wortelaer en Guido Van Limberghen
Onderzoek naar een statuut voor vrijetijdswerk in de non-profitsector dat het midden houdt tussen reguliere arbeid en vrijwilligerswerk.
Lopend onderzoek: mei 2017 - december 2017
Univerité de Liège
Les dispositifs de formation préalable à l’embauche mis en place au niveau de la Région wallonne et de la Région de Bruxelles-Capitale
Renaud Linguelet et Quentin Cordier
The research project consists of a transversal study of the various training systems regulated by the Federated entities and set up by the Walloon Region and the Brussels-Capital Region. It leads to an identification of the criteria to distinguish between the pre-employment training and the employment contract and the analysis of the articulation of training mechanisms with federal regulations, particularly the question of the submission to the social security regime. The research project also involves an attempt to categorize training systems between “apprentissage” contract and “stage” contract. Finally, it studies more intensively one of the training mechanisms, namely the “formation-insertion” in undertaking contract.
The research project resulted in the publication of two articles in a collective book in December 2016 (R. Linguelet et F. Kéfer, «Les contrats relatifs à la formation préalable à l’embauche» in H. Mormont (dir.), Droit du travail tous azimuts, Bruxelles, Larcier, 2016, pp. 635-660 et Q. Cordier, «Le plan de formation-insertion en Région wallonne de langue française» in H. Mormont (dir.), Droit du travail tous azimuts, Bruxelles, Larcier, 2016, pp. 661-667) as well as a presentation on «plan de formation-insertion» at the CUP Conference on December 9, 2016.
Les mécanismes d’adaptation professionnelle des personnes handicapées
The research project focuses on the analysis of the Walloon, Brussels and German-speaking Community regulations of contracts that ensure the accommodation of persons with disabilities to the work world. It also examines the applicability of labour regulations and social security legislation.
The research project resulted in the publication of an article in a collective book in December 2016 (Q. Cordier, «Le contrat d’adaptation professionnelle des personnes handicapées» in H. Mormont (dir.), Droit du travail tous azimuts, Bruxelles, Larcier, 2016, p. 679-699).
L’étendue de la nullité des clauses de non-concurrence insérées dans un contrat de travail et contraires à la loi relative aux contrats de travail, au regard de la jurisprudence récente de la Cour de cassation
The research focuses on an analysis of two judgments of the Court of Cassation, both rendered in 2015, that deal with the scope of the nullity of non-competition clauses contrary to the freedom of trade principle because their duration or territorial scope of application is too broad. The Court of Cassation allows the judge to declare such clauses void but only to the extent of their excess, provided that such “nullity-reduction” is in accordance with the will of the stakeholders and that there is no legal provision to the contrary. This is a departure from the case-law of the Court of Cassation of 3 February involving a blue-collar work contract, in which the Court had denied such power to the judge.
The research ended in October 2016 with the publication of an academic article in RDS/TSR Law Journal.
La mise à disposition de travailleurs
The research project focuses on the provision of the hiring out of workers and its exceptions. It includes a comparison with other related legal vehicles and an analysis of sanctions applicable to infringements of the prohibition. Particular attention is paid to the employers' alliance mechanism; in this regard, a new research component could be conducted with the entry into force of the law of 5 March 2017 on feasible and flexible work.
The research project resulted in the publication of one article in a collective book in December 2016 (R. Linguelet, «La mise à disposition de travailleurs» in H. Mormont (dir.), Droit du travail tous azimuts, Bruxelles, Larcier, 2016, pp. 581-604).
L’obligation d’aménagement raisonnable pour motif religieux en droit du travail
This study focuses on the concept of reasonable accommodation for religious beliefs legal notion and its consequences in the labour law field. It includes a section on the development of the concept in North America. It provides an analysis of the resources provided by the psychosocial risks regulation resources, as amended during the 2014 reform.
In May 2016, the study was published in the Journal des Tribunaux du Travail (R. Linguelet, «L’obligation d’aménagement raisonnable pour motif religieux en droit du travail et les ressources du droit du bien-être», J.T.T., 2016, pp. 231-244). At the Conference for research assistants (ACCA) of 23 June 2017, the study will continue with a focus on two decisions of the Court of Justice of the European Union delivered on 14 March 2017.
La présence syndicale dans les PME
Aurélie Mortier et Renaud Linguelet
This investigation concerns the functioning of the prevention and protection committee and union delegation within SMEs. It highlights sectoral initiatives in order to foster worker representation in workplaces where a union delegation cannot be established.
The study has been published in a collective book (J. Clesse, A. Mortier et R. Linguelet, «La présence syndicale dans les PME: le comité et la délégation syndicale» in R. Aydogdu (dir.), Les petites et moyennes entreprises dans le droit des affaires, Bruxelles, Bruylant, 2016, pp. 181-218).
Le droit pénal social et les pouvoirs des inspecteurs sociaux
The research project studies different parts of the criminal labour law, mainly in relation to the powers of social inspectors. It focuses its attention on two kinds of powers given to the inspectors. On one hand, the power to disclose information and its articulation with the confidentiality of investigations is analysed. On the other hand, the power to enter premises is investigated, in the light of the rights to privacy and inviolability of the home. Moreover, the innovations brought by the Criminal Labour Code are considered.
The research project resulted in the publication of two articles (A. Mortier, «La communication de renseignements en provenance et à destination des inspecteurs sociaux et le secret de l'instruction», J.T.T., 2009, pp. 289-295; A. Mortier, «L'accès des inspecteurs sociaux aux lieux de travail et aux espaces habités», Rev. dr. pén., 2009, pp. 117-148). It also led to a presentation given to the Cellules d'arrondissements de Huy, Liège, Namur et Verviers-Eupen in February 2011.
La modification du contrat de travail
The research project focuses on a comparative analysis of the solutions given by Belgian and French laws on the theme of the modification of the employment contract. In this context, the scope of the employer’s ius variandi, the impact of the revision clauses in this respect, and the consequences that may result from the various kinds of modifications of the employment contract are explored.
The research project resulted in the publication of an article (A. Mortier, «La modification du contrat de travail en droit belge et en droit français», Rev. Dr. ULg., 2010, pp. 321-372).
Clauses abusives du contrat de travail
The research project focuses on the study of some clauses considered as unfair or unlawful terms, of the original mechanisms developed by labour law and the other tools at the disposal of the victim to counteract the abuse of dominance that may be committed by his co-contractor, and the sanctions elaborated in this field.
The research project resulted in the publication of an article written in February 2013 in a collective book (F. Kéfer et A. Mortier, «Les “clauses abusives” du contrat de travail» in B. Kohl (dir.), Les clauses abusives et illicites dans les contrats usuels, Limal, Anthémis, 2013, pp. 97-156).
Several researches have been led in relationship to various aspects of dismissal. In this context, the theme of the control of the reasons for the dismissal has been studied, both before and after the entry into force of the C.C.T. n° 109. The evolution of the distinction between blue-collar and white-collar workers and the harmonization of their status have been analyzed. At last, special attention has been given to two manifestations of collective labour law that put the group above the individual – the dismissal for economic or technical reasons of the workers representatives & the information and consultation procedure in the area of collective dismissals – in the light of the European Convention on Human Rights and the freedom of association.
The research project resulted in the publication of several articles (J. Clesse et A. Mortier, «Le contrôle des motifs du licenciement et le licenciement abusif des employés» in M. Westrade et S. Gilson (dir.), Le licenciement abusif, Louvain-la-Neuve, Anthémis, 2009, pp. 11-48; J. Clesse et A. Mortier, «Droit collectif et droits de l'homme», R.D.S., 2011, pp. 155-191; J. Clesse et A. Mortier, «La loi du 12 avril 2011. Une étape vers l’abolition de la distinction entre ouvriers et employés» in J. Clesse et M. Dumont (dir.), Questions choisies de droit social, Liège, Anthémis, 2012, pp. 7-46; A. Mortier, «L’évolution de la distinction entre ouvriers et employés», Cols blancs Cœur rouge – Les combats des employés, techniciens et cadres du SETCa Liège-Huy-Waremme, SETCA – IHOES, 2012, pp. 205-215; A. Mortier, «La cessation du contrat de travail causée par l'état de santé du travailleur», J.T.T., 2017, pp. 33-42 et 49-59; A. Mortier, «La problématique du cumul de l’indemnité pour licenciement manifestement déraisonnable et des dommages et intérêts pour abus du droit de licencier», J.L.M.B., 2017, pp. 764-770). It also led in July 2013 to the participation to the Seminar of comparative labour law "Pontignano XXX" held in Modena on the topic «The individual dismissals».
La dissolution du contrat de travail par l’effet de la force majeure
The research project focuses on the study of some aspects of the dissolution of the employment contract due to force majeure. In this context, the analysis covers the judicial qualification and requalification of the sort of termination of the contract in the light of the active role of the judge. Moreover, an attention is also given to the study of the dissolution of the employment contract due to “medical” force majeure in the light of the regulation on discrimination and recent developments enacted in 2017 about the establishment of a reintegration process and the related modification of the article 34 of the law of 3rd July 1978.
The research project resulted in the publication of two articles (A. Mortier, «Hypothèse d'un élément de force majeure invoqué après la rupture du contrat de travail», note sous C. trav. Liège, 6 mai 2010, J.L.M.B., 2010, pp. 1478-1483; A. Mortier, «La cessation du contrat de travail causée par l'état de santé du travailleur», J.T.T., 2017, pp. 33-42 et 49-59).
The research project focuses on the study of some aspects related to the anti-discrimination field. In this context, the analysis covers the theme of the discrimination on the basis of the health situation of the worker in the light of the supranational and national instruments and in relationship to two sorts of termination of the employment contract (the dissolution of the employment contract due to force majeure in case of permanent inability and the dismissal). Moreover, a little study has aimed the criteria of the social origin, the birth, and the property, protected by the law of 7th May 2007.
The research project resulted in the publication of two articles (A. Mortier, «La cessation du contrat de travail causée par l'état de santé du travailleur», J.T.T., 2017, pp. 33-42 et 49-59; A. Mortier, note sous Trib. trav. Liège, 10 novembre 2016, J.L.M.B., 2017, pp. 772-774)
Les accidents du travail dans le secteur public
The research project focuses on the study of the rapprochement between the laws of 3rd July 1967 and 10th April 1971, by the lawmaker and the Constitutional Court.
The research project resulted in the drafting of an article published in November 2015 in a collective book (J. Clesse et A. Mortier, «L’attraction réciproque des lois de 1967 et 1971» in M. Westrade et S. Gilson (dir.), Les accidents du travail dans le secteur public, Limal, Anthémis, 2015, pp. 9-28).
Principe non bis in idem dans le domaine de l'assurance obligatoire soins de santé et indemnités
The research project focuses on the potentialities of the principle non bis in idem in the field of the health insurance scheme, more specifically in the hypothesis of an unlawful overlapping of inability allowances and incomes from (fraudulent) work.
The research project resulted in the publication of an article (A. Mortier, «Le travailleur partiellement inapte et le principe non bis in idem», J.L.M.B., 2014, pp. 1684-1690).
L’article 47bis de la loi du 12 avril 1965
The research project focuses on the study of the criminal and evidentiary impact of the article 47bis that likens the lack of receipt for the payment of the remuneration paid cash-in-hand to the non-payment of the salary in the light of the active role of the judge.
The research project resulted in the publication of an article (A. Mortier, «L’impact de l’article 47bis de la loi du 12 avril 1965 concernant la protection de la rémunération des travailleurs, au regard de la problématique du défaut de quittance du paiement de la rémunération de la main à la main», J.L.M.B., 2016, p. 1748-1758).
Les travailleurs et la Convention européenne des droits de l’homme
The research focuses on the fundamental rights enshrined in the ECHR, primarily freedom of expression and the right to privacy. Research conducted between 2007 and 2013.
Retour au travail après une absence de longue durée
This research completes a medical research on existing practices, experiments, pilot projects and good practices in Belgium and other European States and the identification of the factors blocking or encouraging the return to work of long-term sick workers. Concerning the legal aspect, these obstacles result from, in addition to the fact that the employer can terminate the employment contract of long-term sick workers, the complexity of legislation which was developed for different domains (disability benefits, unemployment, work accident, occupational disease) with little attention to transitions from one domain to the other. Research conducted in 2012.
La protection des délégués du personnel
The study aimed at identifying the hard core of the protection given by the law to the workers who are candidates and elected representatives in the works councils and the prevention and protection committees, by following the evolution of the rules.
The study resulted in the publication of an article written with Jacques Clesse, entitled «Etendue et limite de la protection», published in 2011 in the book La protection des représentants du personnel, Anthémis, Jeune barreau de Liège et AJPDS.
La responsabilité solidaire
The researches aimed at studying the legal solidarity mechanisms conceived for the financial obligations of the employer – as well as the remuneration debts as the commitment to pay the social security contributions – when the work is performed in a subcontracting chain. The perspective was to assess the legal solidarity mechanism as a tool at the disposal of the legislator to fight practices that constitute social fraud.
L’entreprise en difficulté
The regulation of distressed companies has a conflicted relationship with labour law. The preservation of the economic potential of undertakings is confronted with provisions aimed at avoiding the deterioration of the workers’ situation. The research focuses on the balance of power between the business community and trade unions within the law of January 31, 2009 (loi relative à la continuité des entreprises). Workers are ultimately led to make a large part of the sacrifice necessary to achieve the economic objective. This observation is perceptible in the case of a reorganisation by collective agreements and transfer under judicial control, which testify to the complex relations between economic and social interests. The reconciliation of these divergent interests is carried out under the supervision of the judge.
Research conducted between 2013 and 2014 and resulted in the writing of a contribution in a collective book (F. Kéfer & G. Gailliet, «Le sort des travailleurs d’une entreprise en réorganisation judiciaire», in J., Clesse (Ed.), Questions choisies de droit social. Hommage à Michel Dumont, Bruxelles, Larcier, 2014, pp. 361-417).