The Constitutional Court recently rendered an important judgment regarding notice periods for the construction sector. At the same time, the Secretary of State responsible for fighting social security fraud issued a policy memorandum in which special attention is paid to "sensitive sectors", including construction. In this respect, the memorandum builds on the 2015 action plan concerning the fight against social security fraud and social dumping and the plan for fair competition in the construction sector of 8 July 2015.
Here is a brief overview of the most important developments and announcements relevant to the construction sector.
Constitutional Court annuls notice period derogation
The act on Single Employment Status ensures that, as of 1 January 2014, equal notice periods apply for both blue-collar and white-collar workers. However, as an exception to this principle, the act provided a derogation applicable for an unlimited duration for blue-collar workers without a fixed place of employment and who normally perform certain activities listed in the act on temporary and mobile working venues. The Constitutional Court annulled these derogating notice periods in a judgment dated 17 September 2015. However, the Court also ruled that the effects of the derogation will be maintained until 31 December 2017.
Posting workers to another EU Member State
It is being advocated at the European level that the posting period should be limited to six months for the construction sector sensu stricto. Prolongation of the posting period would then be conditional on prior verification of compliance with the conditions that are in place to avoid networks of consecutive temporary posting. In anticipation of a specific limitation of the posting period to six months for the construction sector sensu stricto, the validity of an A1-form is limited to six months (with the possibility of renewal) for all sectors.
Registration of attendance at construction sites
Registration of attendance at construction sites worth EUR 800,000 or more will be extended to construction sites worth EUR 500,000 or more as of 1 January 2016. From 1 January 2008 onwards, the measure will be extended to all construction sites.
Limitation of the number of subcontractors
It is being investigated whether the number of subcontractors employed in the vertical chain (i.e. per specialism, e.g. paintwork, electricity, etc.) can be limited to two. For example: a principal employs two contractors – one for paintwork and one for electricity. Each contractor would be allowed to employ two subcontractors.
Database concerning joint and several liability for wages
Belgian and foreign principals and contractors will be able to obtain information regarding the joint and several liability for wages from the Federal Public Service Employment, Labour and Social Dialogue. A database will be available on the public website of the Federal Public Service or the National Social Security Office, similar to the database that already exists in the framework of social and tax debts.
Consideration of good faith in case of subsidiary joint and several liability for social security debts?
In response to a parliamentary question, the Secretary of State responsible for fighting social security fraud undertook to adapt the joint and several liability in order to make sure it is no longer applied to bona fide principals and contractors. Currently, a principal or contractor placed higher in the chain who has complied with the required withholding obligation can potentially still be held jointly and severally liable for social security debts of contractors placed lower in the chain (subsidiary joint and several liability). The National Labour Council has recommended that a bona fide principal or contractor who has complied with the required withholding obligation towards its direct (sub-)contractor should no longer be held jointly and severally liable. The Secretary of State intends to follow this advice.