CONVERSION OF THE EUROPEAN DIRECTIVE 2014/67/EU ON THE ENFORCEMENT OF DIRECTIVE 96/71/EG TO THE BELGIAN LABOUR LAW – 20/12/2016
On the 20th of December 2016 the conversion of the European Directive 2014/67/EU was published in the Belgian official journal.
This law introduces a number of new items, the most important ones you find hereafter:
The criteria based on factual evidence to judge whether or not there is a posting situation
There are two lists of criteria which enables to judge whether or not a posting situation exists.
A first list of factual elements is related to the compulsory temporary duration of the posting. This list defines whether to requalify activities, which are qualified as posting activities but in reality are not temporarily. These factual elements can be:
- Activities performed for a specific period of time in Belgium
- The date the posting to Belgium begins
- The situation of the employee, employed in Belgium by secondment through another country than the country he normally performs his job (home country)
- The fact that an employee, employed as such, the moment his secondment stops or the execution of his services ends, returns or is meant to start to work again in the country he was send out before
- The nature of the activities
- The posting employer takes care of the transport, housing and food costs or pays for these expenses to the employee and in the cases at hand, how this is organized or refunded
- All former periods of time where the same or another posted employee has performed the concerned activities
The second list of factual elements is related to the judgement of the actual establishment in the place of residence of the posting company. This list enables to judge whether or not the company has substantial activities in this residence country. This list will enable to fight against so-called “post box enterprises”. These factual elements can be:
- the place where the company has its registered office and its administration is carried out, where it has offices, pays taxes and social security contributions, and, if applicable, in accordance with national law, where it has a permit to exercise its profession or is registered with the Chamber of Commerce and/or professional associations;
- the place where posted employees are recruited and from which they are seconded;
- the applicable law for employment contracts, on the one hand, and contracts with its customers, on the other;
- the place where the company performs its main business activities and its administrative staff is based;
- the number of the executed agreements and/or the size of the sales in the country of residence, taking into account, among other things, the specific situation of new enterprises and small and medium-sized enterprises.
Obligation to indicate a liaison
The law states that any employer who wants to second staff in Belgium is obliged, prior to that posting, to appoint a liaison and inform the respective Belgian officials, which are designated by Royal Decree (inspection services). The liaison is a natural person who is designated by the employer, on behalf of the latter, to ensure contact with the designated officials, and who can be contacted by the latter to hand over any document or to give or receive any advice related to the employment of posted employees in Belgium.
The employer who seconds an employee must be able to present the following documents to the Belgian inspection, which in practice will be done by intervention of the aforementioned liaison:
- a copy of the employment contract of the posted employee or any other equivalent document;
- working time reviews that mention start, end and duration of daily working time of the posted employee;
- proof of payment of the wages of the posted employee;
- information relating to the foreign currency used for the payment of wages, the benefits in cash or in kind connected with the employment abroad and the terms of the return of the posted employee; and
- a copy of the documents concerning the wage.
Upon request of the inspection the employer must provide a translation of the aforementioned documents, either in one of the official Belgian languages or in English.
Joint and several liability for wages
The Belgian wage protection act creates a new regime of joint and several liability for the direct contractor introduced for activities in the ” building sector ” in the broad sense, that is the Joint Committee No. 124 for the construction industry, the Joint Committee No. 111 for the metal, machine and electric construction, the Joint Committee No. 121 for the cleaning, the Joint Committee No. 126 for the upholstery and the woodwork and the Joint Subcommittee No. 149.01 for electricians: installation and distribution, which also are considered as “works on immovable property”.
This joint and several liability is in addition to the existing “general regime” on joint and several liability for wage debts. This new regime of joint and several liability is different on multiple points from the general regime. The law provides for a possibility of a safeguard clause in a written agreement or declaration.
the employee posted abroad to another Member State of the European Economic Area or Switzerland and who starts judicial or administrative procedures in Belgium or in another country against his employer in order to claim his rights, may not encounter any disadvantages as a result of the start-up of such judicial or administrative procedures.
designation of a number of organisations which can defend the rights of workers in disputes that may result in the application of this law, with the consent of the latter, among others, the representative workers and employers organizations, the representative trade unions. The intervention of these organizations shall not affect the right of the workers to start a procedure by themselves or to join existing ongoing legal claims or to intervene in proceedings.
notification of the decision to impose an administrative fine and to collecte administrative fines imposed on a service provider established in another EU Member State due to non-compliance with the rules in force in Belgium on posting of employees. This debt collection will be done via the competent authority of the resident country.
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