In the Belgian Official Gazette of December 20th, the Act of December 11th, 2016 laying down several provisions with respect to the posting of employees was published. This Act transposes the Enforcement Directive 2014/67/EU (“Enforcement Directive”) of the Posting Directive 96/71/EC (“Posting Directive”) into Belgian law and includes, among other measures, a number of additional obligations for employers posting employees on the Belgian territory and a specific system of joint and several liability for wage debts in the construction industry.
Background
Posted employees are employees who have been assigned by their employer to temporarily work in another member state of the European Economic Area or Switzerland.
The Posting Directive – adopted in 1996 and transposed into Belgian law by means of the Act of March 5th, 2002 – provides the legal framework for posting employees. Note in this respect that the Posting Directive solely governs the labour law position of posted employees and should clearly be distinguished from the European social security coordination Regulation no. 883/04, which falls outside the scope of the current discussion.
One of the key provisions of the Posting Directive is that – although posted employees will in general remain subject to the labour law provisions of their country of origin – employers have to abide by certain “hard core” labour law regulations (e.g. minimum salary, working hours and health and safety code) of the country where the work is performed.
In 2014, the Enforcement Directive of the Posting Directive was adopted in order to address a number of difficulties that had become apparent in the application, in practice, of the Posting Directive and corresponding national legislations as transposed (lack of efficient tools for member states to identify and counteract abusive posting of employees, problems with the cross-border enforcement of sanctions, etc.).
New legislative measures
The Act of December 11th, 2016, laying down several provisions with respect to the posting of employees contains the following new regulations:
- Introduction of two non-exhaustive lists of factual criteria in order to determine whether an employee can be considered as a posted employee on the one hand and whether a foreign company that posts employees on the Belgian territory has the required substantial activity in its country of origin on the other hand;
- By formal request, the inspectorate services will be able to require the employer who posts employees in Belgium to provide the following information and documents related to the posting:
– a copy of the employment agreement of the posted worker or any document with equal value;
– diverse information regarding the conditions of the posting (e.g. salary during the secondment, duration of the secondment, etc.);
– an overview of the working hours;
– proof of payment of the salaries.
- Prior to posting an employee to Belgium, the foreign company has to appoint a designated contact person who will liaise with the competent Belgian inspectorate services and who will have to provide them with information and documents – including those listed above – related to the posting. It has not yet been determined how this contact person should be appointed vis-à-vis the Belgian authorities, but we assume that this appointment might be incorporated in the Limosa-declaration. A Royal Decree will have to bring clarity in this respect;
- Employees who are posted from Belgium to work in another member state of the EEA or Switzerland and initiate legal or administrative proceedings towards their employer in order to safeguard their entitlements under the Posting Directive (e.g. entitlement to a higher salary in the country of posting) should not encounter any disadvantage because of this;
- Introduction of a specific system of joint and several liability for wage debts of the direct contractor within the construction industry. This specific system will exist in addition to the general system of joint and several liability for wage debts that is currently already applicable with a number of industries, among which already the construction industry;
- New provisions are added to the Social Penal Code regarding the cross-border enforcement of criminal and administrative sanctions imposed by the Belgian authorities. In addition, sanctions are included to specifically cover the above new regulations.
The above new provisions will be applicable as of January 1st, 2017.
Two major action points
1. Taking into account the above, it will be important for foreign companies who post employees to Belgium to review their posting process and – where necessary – adjust it accordingly in order to comply with the new regulations described above. Particular attention should be paid to appointing a contact person and to anticipating that the provision of additional documents or information with respect to the posting may be requested by the Belgian inspectorate services.
2. In addition, Belgian companies who are active in the construction industry and/or call on the services of contractors will in future also have to take into account the new industry-specific system of joint and several liability for wage debts of direct contractors and should preferably adjust their service agreements to reflect this new legislation.
