Belgium has implemented EU Directive 2014/67 (posted workers) in its national legal framework as per December 2016. The new regulatory framework is focused on the protection of the rights of posted workers, clarifies definitions and monitoring power and on the consequential prevision of penalties.
Protection of Rights
The law underlies the importance of protecting the rights of posted workers, and guaranteeing them the possibility to withstand to the disposition of collective agreements.
Furthermore, the law prescribes that the posted worker shall not encounter any disadvantage from their employer with regards to legal or administrative procedures against their employer.
Who is a Contractor (Posted Worker)?
It also focuses on the specification of the definition of two crucial character: the posted worker and the posting employer.
The first is defined by the presence of the following elements:
- The work is carried out for a limited period of time in Belgium;
- The employment has a defined date;
- The actual posting takes place from a different place than Belgium, and it is directed to Belgium;
- The posted worker return in the Member State from where he/she was posted after the completion of the work or the provision of the service;
- The nature of the activity;
- Travel and accommodation are provided by the employer who posts the worker.
Who is a Posting Employer?
The law defines the elements that specify the position of the posting employer, to ensure that the undertaking is not an umbrella company:
- The place where the undertaking has is registered office and administration;
- The place where posted workers are recruited and from which are posted;
- The law applicable to the contracts concluded by the undertaking with its workers and with its client;
- The place where the undertaking performs its substantial activity and where it employs administrative staff;
- The number of contracts performed and the size of turnover performed in the Member State of establishment.
Nevertheless, these lists are not exhaustive and the analysis shall be established on a case by case basis.
Belgium was not only one of the first Member State to introduce a notification – the so called Limosa – required before posting the employees in the National Territory, but, as result of the new Law, organisations will also have to designate a person acting as a liaison between the organisation and the competent authority.
The designated individual shall then provide the authority with specific information such as:
- Copy of the employment Contract of the posted employee;
- Information regarding the condition of the posting;
- Summary of working hours;
- Proof of Payment of the salary.
Lastly, it is important to mention that the Act envisage not only the provision of penalties in the Social Criminal Code for failing to pay the salary to employees and for employers who refuse to comply with the requirements of social inspection services, but also introduces – as it is in the EU Directive 2014/67 – the cross-border execution of administrative and criminal fines.