Principals, contractors and subcontractors should amend and complete their contracting agreements in order to be exempted from the several liability for the payment of the salary due to the workers of their contracting party.
Previously, the law of 29 March 2012 enacted already rules, according to which the principal could be made severally liable for the payment of the salary due to the workers of his contractor and subcontractor(s).
The law of 11 December 2016 (D or F), that entered into force on 30 December 2016, installs a comparable system, which automatically applies as a matter of law, and this unlike the system of the law of 29 March 2012 where the several liablility only applies after notice by the employee or the inspection.
The law of 11 December 2016 relates particularly to the secondment of (foreign) workers and amends the Belgian legislation in line with the EU-directive 2014/67/EU.
These rules aim, within the framework of (cross border) secondment, at fighting fraud and unfair competition.
Nevertheless, the stipulation provided by the law relating the several liability applies at all situations of contracting of work or subcontracting (regardless of whether – foreign – seconded workers are involved or own Belgian workers of the (sub)contractor).
1. The scope of the several liability for payment of the salary
At present, the several liability applies only with respect to activities and services falling within the scope of the following labour-management committees :
1) the joint labour-management committee for the construction sector (JL-MC n° 124) and
2) the joint labour-management committees for the metal industry (JL-MC n° 111), cleaning (JL-MC n° 121), carpentry (JL-MC n° 126) and electricians (JL-MC n° 149.01) to the extend these activities and services qualify as “works of immovable nature”, as defined in article 20 §2 of Royal Decree n° 1 relating to VAT.
2. Meaning of several liability for payment of the salary
Pursuant to these rules the principal is severally liable with his contractor, it being understood that this several liability remains limited to the contractor also in the case of a chain of subcontractors.
The same principle applies relating the several liability of the contractor and the subcontractor(s) : their several liability is also limited to their direct subcontractor.
The several liability does not apply to natural persons who are contracting out work for private purposes.
The several liability applies to all wages which are due (including wages of the past: the liability applies automatically and as a matter of law) provided the wages relate to work performed within the framework of the contracting or the subcontracting.
For foreign workers, seconded out of other countries, the several liability applies to the minimum wages, as laid down in the collective labour agreements entered into within the framework of the competent joint labour-management committee.
3. Several liability for payment of the salary can be lifted
The several liability of the principal with his contractor and of the (sub)contractor with his direct subcontractor, can be lifted.
For this purpose, the principal – or the (sub)contractor – has to establish and sign a statement with the (sub)contractor including :
the coordinates of the internet site of the Federal Public Service Employment, Labour and Social Dialogue holding the information concerning the wages due; and
the confirmation by the (sub)contractor that he pays and shall pay the wages due.
4. But ... take care with the following
This exemption is lifted 14 working days following knowledge on the part of the principal or the (sub)contractor of the fact that the wages have not been entirely paid by his contracting party.
In that case, the several liability is limited to the wages, which are due for the work performed as from the expiration of the period of 14 working days.
The statement established by the Social Inspection in accordance with article 49/3 of the Social Penal Code (notification by the Social Inspection of the failure of entire payment of the wages) constitutes evidence of knowledge.
5. What to do in case of concurrence of legislations?
In the case of concurrence of the several liability on the basis of the law of 29 March 2012 with the several liability on the basis of the law of 11 December 2016, the latter rules prevail.
This priority applies only with respect to the several liability with the direct contractor or direct subcontractor.
Consequently, the several liability of the principal for the wages payable by the subcontractors of his contractor (and of the (sub)contractors for the wages payable by all the subcontractors down the chain), as provided for in the law of 29 March 2012, remains applicable.
The failure to pay the back wages by the severally liable person is sanctioned by the Social Penal Code: an administrative fine of 200 EUR up to 2,000 EUR or a penal fine of 400 EUR up to 4,000 EUR, possibly applicable as many times as the number of workers concerned.
Needless to say, it is essential for each principal, contractor or subcontractor to amend and complete the contracting agreement in order to be able to invoke the exemption, as referred to above.