New European posting rules have been transposed into Belgian law!
The Posting of Workers Directive determines which salary and working conditions apply in the case of posting of workers. Directive 2018/957 amended the Posting of Workers Directive on 29 July 2018. This directive had to be transposed into national law by 30 July 2020 at the latest. This has now been done. The Act on several positions on posting of workers has been published in the Belgian Official Gazette today on 18 June 2020 and thus provides for the transposition of European Directive 2018/957 of the European Parliament and the Council of 28 June 2018 amending the Posting of Workers Directive (96/71/EC). The law enters into force in Belgium on 30 July 2020.
The directive has consequences for labor law only and not for social security matters. These aspects are regulated by Regulation (EC) No 883/2004 on the coordination of social security systems. Taxation and enforcement aspects are also included in other European legislation.
Impact of the transposition of the Directive into Belgian law
The act amends the following legislation:
1) The act of 5 March 2002 on working, salary and employment conditions in the event of the posting of workers in Belgium:
From 30 July 2020, in the case of posting, a distinction must be made between an initial period of 12 months and a second period of 12 months of posting, after which additional conditions will apply.
During the first 12-month period (extendable to 18 months subject to reasoned notification), as is already the case today, all criminally sanctioned labor, salary and employment conditions as well as universally applicable collective labor agreements will apply to posted workers ("hard core" provisions).
As soon as the posting lasts longer than 12 months, the employer must comply with a more extensive package of labor, salary and employment conditions and posted workers are entitled to all labor, salary and employment conditions provided for by law, regulations and administrative provisions, regardless of whether these are criminally sanctioned. This means that most of the provisions of the Employment Contracts Act, such as, for example, the provisions on guaranteed salary in the event of sickness or accident and the provisions on short leave, become applicable. The Belgian dismissal rules and the supplementary pension schemes fall outside the scope of application.
The act clarifies that supplements or allowances for travel, meal and accommodation costs provided for in universally applicable collective labor agreements must only be granted to posted workers who travel to and from their usual place of work in Belgium and workers who must temporarily move abroad from their usual place of work in Belgium.
The allowances directly linked to the posting are, as before, considered to be part of the salary to the extent that they are not paid to reimburse actual costs, but a presumption of reimbursement of costs is now introduced. If it is not possible to determine which elements cover actual costs and which elements constitute salary, the full amount will be considered as a cost allowance.
Finally, an anti-abuse provision has also been introduced. When an employer replaces a posted worker with another posted worker performing the same task in the same place, the different periods of posting will have to be added up to verify whether the 12-month limit has been reached.
The legislation is temporarily not applicable to the road transport sector.
2) Act of 24 July 1987 on temporary work, temporary agency work and the hiring-out of workers for the benefit of users and, on the other hand, the Act of 12 August 2000 regulating employer groups.
The act introduces two criminally sanctioned information obligations for the user established in Belgium to whom employees are posted:
- The Belgian user of temporary workers must provide the temporary employment agency with information (in writing or electronically) on the working and employment conditions applicable to the posted temporary workers. If, for example, a Polish temporary employment agency posts an employee to Belgium, the Belgian user must inform the Polish temporary employment agency of the working time, breaks, rest periods, pay, holidays, etc.
- The Belgian user must also give prior notice to the (Belgian or foreign) temporary employment agency if the temporary worker will be working in another EEA Member State or in Switzerland. This obligation also applies in the context of other forms of permitted lending of personnel and employer groups.
3) The Social Criminal Code
The act supplements the Social Criminal Code so that service providers who do not comply with Belgian employment conditions can invoke mitigating circumstances when determining the sanction if the only official website in Belgium (the website of the FPS WASO) does not mention these employment conditions.
Furthermore, the Social Criminal Code is adapted to the information obligations described above, which in the event of non-compliance will be penalized by a level 2 sanction, i.e. a criminal fine between €400 and €4,000, or an administrative fine between €200 and €2,000, multiplied by the number of employees involved (maximum one hundred times the maximum fine).
The impact of the new law is relatively limited.
However, the following points of attention must be followed:
- From 30 July 2020, foreign employers who post workers to Belgium for more than 12 months will have to apply a more extensive package of employment conditions;
- Belgian users who use foreign workers will have to take into account the new information obligation imposed in case of temporary work and permitted posting of personnel (e.g. intra-group posting).