The Law of 16 December 2016 on different provisions regarding the posting of employees entered into force on 30 December 2016 and transposes European Directive 2014/67/EU into national legislation. The purpose of this Directive is to prevent and fight abuse in the posting of workers by making sure provisions regarding compliance with salary and working conditions are applied more effectively. What changes does the new Law introduce in regard to the currently applicable rules?
Posting employees to a member state of the EEA or Switzerland
The aforementioned Law prescribes that employees who are posted from Belgium to another member state of the EEA or Switzerland, may not encounter any disadvantages from their employer when they start legal or administrative procedures against their employer to enforce the rights they are entitled to as posted employees.
Recognizing "posted employees" and "posting employers"
The Law also introduces two lists with elements which should allow the inspection services or the labour courts to assess whether or not they are faced with a situation of posting of workers.
The first list contains elements to check if employees are to be considered as posted employees and if they perform temporary activities in Belgium. The second list focuses on the recognition of employers posting employees and whether or not the employer performs substantial activities in the country of origin (and is not just a shell company). Note that both lists are non-exclusive and that elements can be added.
Liaison between employer and authorities
Belgium was one of the first countries to introduce the so called Limosa - notification, required of employers before posting employees in Belgium. As a result of the new Law, and to comply with the European Directive, organisations will also have to designate a person acting as a liaison between the organisation and the competent authorities before posting their employees.
The social inspection services can ask the designated person to provide them with social documents, such as:
- A copy of the employment contract of the posted employee
- Information regarding the conditions of the posting
- A summary of the working hours
- Proof of the payment of the salary
The inspection services are allowed to ask a translation of the documents into one of the three national languages, or in English.
Joint and several liability in the construction sector
The Act provides in a joint and several liability for the direct co-contractor for the payment of the salary of employees in construction activities. This co-contractor can be the client, the contractor or the subcontractor and the joint and several liability applies to the salaries of all employees employed in Belgium, thus both normal employees and posted employees. Only if the client holds a written statement signed by himself and the contractor, he can be exempted from the joint and several liability.
Administrative and criminal fines
By the Act of 11 December 2016, a new European system (the IMI-system) is introduced for the cross-border execution of administrative and criminal fines. Besides, new sanctions are added to the Social Criminal Code for joint and several liable co-contractors who fail to pay the salary of employees, for employers who refuse to inform social inspection services of the person acting as a liaison and for employers who do not provide the social inspection services with the necessary social documents.