Amendment to the Belgian Posted Workers Act: new rules for posted employees
Employees who are temporarily sent to work in another EU member state by their employer, are subject to the stipulations of the European Posting of Workers Directive. This directive determines that a set of “hard core” minimum terms of employment conditions of the host country is applicable on top of the law of the sending country. Upon transposing the directive in local legislation (the act of 5 March 2002), Belgium already went further than what the directive imposed.
Mid 2018 this directive was amended, making more local legislation applicable than the hard core of the host country. Additional obligations regarding the posting of temporary agency workers were introduced as well. Member states were supposed to transpose this directive into local legislation by 30 July 2020. The concerned Belgian legislation has recently been amended.
These modifications take effect on 30 July 2020.
1. Amendment act concerning working and remuneration conditions in the event of posting of employees to Belgium
The key changes of the amended act are the following:
- If the secondment lasts less than 12 months, the employer must comply with all working and remuneration conditions that are criminally sanctioned and result from legal provisions and collective bargaining agreements made compulsory by Royal Decree with the exception of supplementary occupational pension schemes;
- After the period of 12 months (! renewable up to 18 months with a motivated notification to the Federal Public Service for Employment), posted workers are furthermore entitled to all statutory working and remuneration conditions that are not criminally sanctioned (such as for example guaranteed salary) excluding:
- The rules regarding the conclusion and termination of the employment contract;
- Supplementary occupational pension schemes.
- Taking into account that many labour law provisions were already criminally sanctioned in Belgium, this does not change much in practice.
! If the employer replaces a posted worker with another posted worker performing the same task at the same place, the duration of the posting will be calculated by adding up the duration of the posting periods of the individual posted workers concerned in order to determine the period of 12 months.
- Allowances for travel, meal or accommodation costs for employees who are abroad for professional purposes and that result from collective bargaining agreements made compulsory by Royal Decree, should only be granted to workers who are posted to Belgium for travel to and from their regular place of work in Belgium or when these workers are temporarily sent by the employer from that regular place of work to another regular place of work.
- Allowances directly related to the posting are considered as a part of the remuneration to the extent that these are not paid as a reimbursement of actual expenses (such as travel, meal or accommodation costs).
If it cannot be determined which elements of the allowance cover actual expenses and which elements are actual salary, the entire amount of the allowance will be considered as a reimbursement of expenses. In that case, the allowance will not be taken into account in order to determine whether the required salary has been paid.
The above changes are temporarily not yet applicable to the road transport sector.
2. New rules specific to the use of temporary agency workers
The Posting of Workers Directive also changed the Act of 24 July 1987 concerning temporary work, temporary agency work and lease of personnel. If you use foreign temporary agency workers, you have the following obligations as from 30 July:
- If a temporary agency worker is posted to Belgium from another country, the Belgian user company must inform the temporary employment agency in writing (in paper or electronically) about the applicable employment and working conditions in the company (working time, overtime, breaks, resting times, night work, holidays, public holidays, salary, protection of certain categories of employees, equal treatment and discrimination).
- The Belgian user company of the temporary agency workers must give the (Belgian or foreign) temporary employment office prior written notice if the temporary agency worker will work in another EEA state or Switzerland. This change is temporarily not yet applicable to the road transport sector.
3. Criminal sanctions
Non-compliance with the working and remuneration conditions was of course already sanctioned in the Social Criminal Code.
Non-compliance with the new information obligation concerning temporary agency workers is sanctioned with a sanction of level 2 (criminal fine of 400 to 4.000 EUR or an administrative fine of 200 to 2.000 EUR per employee with a maximum of 100 employees) as from 30 July 2020.
Also new is that, in the event of an infringement, a foreign service provider will be able to invoke extenuating circumstances if the relevant working and remuneration conditions are not mentioned on the FPS Employment’s website.