When does a driver qualify as a posted worker?
Obligations for Belgian employers posting drivers abroad
Obligations for foreign employers posting drivers to Belgium


With the Act of 19 June 2022, Belgium has implemented EU Directive 2020/1057 on the posting of drivers, by providing, among other things, adjustments to the Posting Act of 5 March 2002. Foreign posting employers are not the only ones impacted; the Act of 19 June 2022 has also introduced a new information obligation for Belgian employers posting drivers abroad. This article summarises the key changes and some important points of which employers should be aware.

When does a driver qualify as a posted worker?

The work performed by drivers is of a highly mobile nature. Drivers often pass through different countries during a single transport operation, without loading or unloading freight and/or with or without picking up or setting down passengers. Requiring employers to comply with the general posting principles (ie, ensuring compliance with the mandatory local employment terms and conditions that are more favourable than the employment terms and conditions applying in the home country) each time a driver crosses the border of a country was considered to be disproportionate.

Therefore, a tailored definition of the concept of "posting" in the road transport sector was needed. The Posting Act now clarifies when a driver qualifies (and, even better, does not qualify) as a "posted worker". Only if a driver qualifies as a posted worker do the provisions of the Posting Act apply to the posting employer and the posted worker.

The following table provides some guidance.

Description

Posted worker?

A driver merely passes through Belgian territory, without loading or unloading freight and without picking up or setting down passengers.

For example, a driver is employed by a company established in the Netherlands. The driver must unload their freight in France. They cross through Belgian territory.

No. The driver is not a posted worker in the sense of the Posting Act.

A driver carries out cabotage operations.(1) For example, a driver is employed by an employer established in Poland. The Polish driver picks up goods at the port in Antwerp (in Belgium) for delivery in Brussels (also in Belgium).

Yes. The driver is a posted worker in the sense of the Posting Act for the work performed in Belgium.

A driver performs a "bilateral transport operation(2) for goods" – that is, the movement of goods based on a transport contract. For example, a driver is employed by a company established in Bulgaria and executes a bilateral transport operation between Bulgaria and Belgium. The driver loads their truck in Bulgaria and unloads the freight in the country of destination, Belgium. The driver then loads their truck again in Belgium and returns to Bulgaria without any intermediary work activities in other countries.

No. The driver is not a posted worker in the sense of the Posting Act.

A driver executes a bilateral transport operation for goods and performs one loading or unloading activity in one of the countries that the driver passes through, provided the driver does not load and unload goods in the same country.(3) For example, a driver is employed by a company established in Portugal and executes a bilateral transport operation between Portugal and the Netherlands. The driver must unload half of their freight in Belgium. The remainder of the freight is unloaded in the Netherlands, before returning to Portugal.

No. The driver is not a posted worker in the sense of the Posting Act.

A driver executes a bilateral transport operation for goods to the employer's country of establishment and performs a maximum of two loading and/or unloading activities in the countries that the driver passes through, provided:

  • the driver does not load and unload goods in the same country; and
  • the bilateral transport operation was preceded by a transport activity in the employer's country of establishment during which no additional transport activity was performed.

For example, a driver is employed by a company established in the Netherlands. They drive to Spain without performing a transport activity. They execute a bilateral transport operation between Spain and the Netherlands. During their trip, the driver loads some additional freight in Belgium and in France, before returning to the Netherlands.

No. The driver is not a posted worker in the sense of the Posting Act.

A driver executes a combined transport operation that starts or ends in Belgium, provided the operation consists of separate bilateral transport operations regarding goods. For example, a driver is employed by a company in Belgium. The driver performs a transport operation from Belgium. The driver unloads freight in Spain. The last part of the journey is completed by train. In the frame of a new transport contract, the driver loads the truck in Spain and returns to Belgium, where they fully onload the truck.

No. The driver is not a posted worker in the sense of the Posting Act.

A driver executes a bilateral transport operation regarding passengers, provided the activity is limited to:

  • picking up passengers in the employer's country of establishment and setting them down in Belgium;
  • picking up passengers in Belgium and setting them down in the employer's country of establishment; or
  • picking up and setting down passengers in the employer's country of establishment for the purposes of carrying out a local excursion.

For example, a driver is employed by a company established in the Netherlands. The driver picks up passengers in Amsterdam and sets them down in Brussels.

No. The driver is not a posted worker in the sense of the Posting Act.

A driver performs a bilateral transport operation for passengers, provided:

  • the driver picks up or sets down passengers once in the countries that the driver passes through; and
  • the driver does not offer passenger transport services between two locations in a country passed through.

For example, a driver is employed by a company established in the Netherlands. The driver picks up passengers in Amsterdam. They pick up a second group of passengers in Brussels. The driver sets down all the passengers in Paris.

No. The driver is not a posted worker in the sense of the Posting Act.

Obligations for Belgian employers posting drivers abroad

Any employer established on Belgian territory that posts a driver to another EU member state must provide such a driver with a written document, either in paper form or electronically, with a reference to the host country's official national website that has information on posting.

An overview of such websites can be found on Your Europe.(4)

This obligation not only applies to employers falling under Joint Committee No. 140 for transport and logistics but also to employers falling under Joint Committees No. 117 for petroleum trade, No. 124 for construction, No. 127 for fuel trade and No. 317 for security and/or supervision.

Obligations for foreign employers posting drivers to Belgium

Compliance with mandatory Belgian employment terms and conditions
A foreign employer posting a driver to Belgium has to comply with the requirements under the Posting Act.

This implies that a foreign employer must immediately comply with:

  • all labour, salary and employment requirements of Belgian statutory provisions that are criminally enforced (ie, the vast majority of Belgian employment requirements); and
  • national and (often complex) sector collective bargaining agreements that have been declared generally binding by royal decree, unless more favourable terms and conditions are provided for under the law of the workers' home country.(5)

If no posting setup is at hand, the general principles in the national legislation determined on the basis of the Rome I Regulation(6) apply.

Obligation to submit posting declaration
A posting employer established in the European Union or in the United Kingdom(7) must submit a posting declaration, prior to the start of the posting on Belgian territory, by completing a standard form on the official Road Transport Posting Declaration Portal.

The posting declaration includes the following information:

  • the identity of the posting employer (at least in the form of the community licence number);
  • the transport manager's (or another contact person's) contact information;
  • the driver's identity, residence address and driving licence number;
  • the start date of the driver's employment contract as well as the legislation governing the employment contract;
  • the envisaged posting's start and end date;
  • the vehicle's number place information; and
  • clarification as to whether the transport operations qualify as the transport of goods, the transport of passengers, international transport or cabotage.

The posting employer is obliged to keep the posting declaration up to date.

Employers not established in the European Union or the United Kingdom must submit a similar declaration by completing an electronic form that will be made available by the Federal Ministry of Work.(8)

The obligation to submit a posting declaration does not replace an A1 form or a certificate of coverage.

Obligation to appoint transport manager
Save for the road transport sector, employers posting workers to Belgium are obliged to appoint a liaison person. Such a liaison person serves as the point of contact for the inspection services – for example, to deliver and receive, on behalf of the foreign employer, any document or notification concerning the employment of the posted workers in Belgium.

Employers posting drivers active in the road transport sector must not appoint a liaison person but a transport manager or another contact person. This person must be appointed in the employer's country of establishment.

The transport manager's (or contact person's) contact details are stated in the mandatory posting declaration.

Obligation to make social documents available to social inspection services
During a posting, the employer has the obligation to ensure that the driver has the following documents at their disposal:

  • a copy of the posting declaration;
  • evidence of the transport operations taking place in Belgium;
  • tachograph records, and in particular the country symbols of the countries where the driver is present when carrying out international transport or cabotage operations.

The driver has the obligation to keep these documents and to make them available during an "on-the-road" inspection.

After a posting, a social inspector can request a posting employer to submit the following documents:

  • the documents listed above;
  • a copy of the employment contract or an equivalent document including some mandatory information on the most important aspects of the employment relationship, such as:
    • the posting employer's and the driver's identity;
    • the employer's registered seat address;
    • a description of the work to be performed;
    • the start date (and, as the case may be, the end date) of the employment relationship;
    • the salary at the beginning of the employment relationship as well as the other salary components the driver is entitled to;
    • the salary payment method and its frequency; and
    • the regular daily working time;(9)
  • timesheets relating to the driver's working time, indicating the start, end and duration of the daily working time during the posting; and
  • proof that the salary has been paid during the posting.

This information must be submitted within eight weeks following a social inspector's request. Exchanging this information can also happen via the Road Transport Posting Declaration Portal. Employers not established in the European Union or the United Kingdom must provide the requested information by mail or email.

Obligation to provide salary-related information upon expiry of posting
Upon request, a posting employer must submit to the social inspection a copy of the pay slips (or their equivalent). The information must be submitted within eight weeks following such a request. Exchanging the relevant information can be done using the Road Transport Posting Declaration Portal. Employers not established in the European Union or the United Kingdom must provide the requested information by mail or email.

No obligation to establish work rules
Employers posting drivers active in the road transport sector are released from the obligation to issue work rules. This differs from the obligation that applies to posting employers active in other sectors: they are obliged to issue work rules unless they proceeded with a Limosa declaration. If they do so, then the obligation to issue work rules only applies if the posting exceeds 12 months.

The exemption applying to posting employers active in the road transport sector applies for the entire posting period, independent of its duration.

In the same way, these employers are also exempted from the obligation to provide certain documents that allow the control of part-time work.

For further information on this topic please contact Emma Van Caenegem at ALTIUS by telephone (+32 2 426 1414) or email ([email protected]). The ALTIUS website can be accessed at www.altius.com.

Endnotes

(1) "Cabotage" refers to a national transport operation carried out in the territory of an EU member state by a transport operator established in another EU member state.

(2) A "bilateral transport operation for goods" means the movement of goods, based on a transport contract, from the employer's state of establishment to another state, or from another state to the employer's state of establishment, as per article 2(6) of the Posting Act.

(3) This exemption only applies until the use of smart tachographs recording border crossings becomes required. As from that date, the exemption only applies to drivers using a vehicle fitted with such a smart tachograph.

(4) This is an official EU website. On the relevant page, it is possible to scroll down to "national websites on posting" and pick the relevant country website using the dropdown menu.

(5) For further details, see "Posting workers to Belgium: all you need to know".

(6) Regulation (EC) No. 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations.

(7) For employers established in the United Kingdom, the information to be provided is set out in Annex 31 of the Trade and Cooperation Agreement.

(8) This form has not yet been made available by the Federal Ministry of Work.

(9) This obligation is not limited to posting employers active in the road transport sector but applies to all sectors.