A recent draft act containing various provisions regarding the posting of workers implements Directive 2014/67/EU into Belgian legislation. This draft act, approved by the Parliament on 24 November 2016, gives the social inspectorate new means of monitoring compliance with the rules on posting workers within the EEA or to Switzerland, and for addressing fraud.
Background
The draft act concerns posted workers. These are workers who are sent by their employer to another EEA Member State or Switzerland to work there. The Posting of Workers Directive of 1996 determines the applicable rules. Posted workers are protected, for instance, by a set of "core mandatory rules" concerning remuneration and working conditions applicable in the host state (such as minimum rates of pay). All other aspects remain regulated by the employment legislation of the state from which the posting takes place. The same principle applies to social security.
In practice, the principles of the Posting of Workers Directive were often disregarded. In addition, the monitoring and enforceability of the rules often proved to be problematic. A new directive, Directive 2014/67/EU (the "Enforcement Directive"), was adopted in 2014 to address these problems. The Enforcement Directive aims to achieve more effective application of the Posting of Workers Directive as well as to avoid circumvention and abuse of the rules.
The draft act approved on 24 November 2016 implements the Enforcement Directive into Belgian legislation.
Contents of the draft act
The draft act introduces several new features, the most important of which are discussed below.
Factual criteria for assessing whether or not a posting exists
The draft act includes two lists of factual criteria to assess whether a situation is an actual posting or not.
A first list of factual elements concerns the condition of the temporary nature of the posting. The list aims to allow the reclassification of work which is classified as a posting but which actually is not of a temporary nature.
A second list of factual elements relates to the determination of actual establishment in the country of establishment from where the company renders its services. This list allows an assessment to be made of whether the condition of actual substantial activities in the company's country of establishment is met. Therefore, this list should allow so-called "letterbox" companies to be identified.
Obligation to designate a liaison person
The draft act includes an obligation for an employer who wishes to post workers to Belgium to designate a liaison person prior to the posting, and to communicate this designation to the civil servants (inspectorates) specified by royal decree. The liaison person is a natural person designated by the employer to ensure the contacts with the designated civil servants on behalf of the employer and who can be contacted by these civil servants to provide and receive any documents or advice related to the employment of the workers posted to Belgium.
The draft act stipulates that an employer who posts a worker to Belgium must be able to provide the following documents to the inspectorate, which will in practice be done via the liaison person:
- a copy of the employment contract of the posted worker or any other equivalent document;
- time-sheets indicating the beginning, end and duration of the daily working time of the posted worker;
- proof of the payment of wages to the posted worker; and
- information concerning the foreign currencies used for the payment of the wages, the benefits in cash or in kind related to the employment abroad, and the conditions of repatriation for the posted worker.
At the request of the inspectorate, the employer must provide a translation of these documents either in one of the national languages, or in English.
Joint and several liability for wages
The draft act adds a new regime of joint and several liability to the Wage Protection Act for the direct contractor in the case of activities in the construction sector; this will coexist with the "general regime" of joint and several liability for wages. The new regime differs from the "general regime" in several respects. Without discussing the new regime in detail, we would point out that it is most probably worthwhile for a company to ascertain whether it is potentially exposed to a risk of joint and several liability on the basis of the general regime or on the basis of the new regime, given that the possibilities for avoiding liability are different under each regime.
Sanctions
The draft act adds a new section concerning cross-border enforcement of administrative penalties and fines to the Social Criminal Code. A number of new offences related to the new obligations provided in the draft act are also added to the Social Criminal Code.
Conclusion
The draft act introduces a number of new provisions which will allow the social inspectorate to monitor more effectively compliance with the rules on the posting of workers. Companies which post workers are advised to check (or to arrange to have checked) whether this posting is being done in compliance with the applicable existing and new rules.