Heads up for contractors!

You can occasionally read reports in the press about abuses in the employment of foreign workers, mainly from countries outside the European Union. The government imposes additional obligations and responsibilities on contractors for this reason. 

Vander Elst exemption 

The shortage on – now not only the Belgian but also – the European labour market has companies looking across borders. The so-called ‘Vander Elst exemption’ helps with this. It allows third-country nationals (i.e. non-EU nationals) working legally in another European member state to be employed relatively easily in Flanders as well. We see that third-country nationals (Brazilians, Ukrainians, etc.) find their way to Flanders via the Vander Elst exemption, mainly via Portugal and Poland. 

However, the conditions of the Vander Elst exemption are not always correctly complied with, resulting in illegal employment.

Contractors take note! 

A contractor often uses subcontractors who may then have workers from third countries using the Vander Elst exemption. The contractor is punishable if the subcontractor commits illegal employment. To this day, the contractor can escape this “chain liability” if, in its contract with its subcontractor, it gets the latter to declare in writing that it does not or will not employ illegal immigrants. The liability for the (main) contractor resumes if the social inspectorate can prove that – despite the declaration – it had knowledge of illegal employment. 

Today, the aforementioned written declaration is almost a hall pass for the contractor. The inspectorates find that they do not have enough leverage, which means that the chain liability often remains meaningless. 

The Flemish government has therefore decided to impose an additional obligation on contractors, a so-called ‘due diligence’. In addition, the chain liability will also apply to illegal self-employed workers. 

Additional due diligence 

The due diligence means that the contractor must additionally request a number of documents from its direct subcontractor. These include, in particular:  

• the identification and contact details of the direct subcontractor;  
• the personal data, data on the residence status and data on the employment of the direct subcontractor’s foreign employees and foreign self-employed workers. 

This is still relatively vague, but the Flemish government will draw up a checklist of the concrete data the contractor must request. These will probably include the identity document or passport, the residence permit and/or a work or professional card, the Limosa declaration and the A1 declaration. 

A few points of attention

Please note that in order to apply the Vander Elst exemption, it is not sufficient to have the residence and work permit issued by the posting member state. For the period of his employment on Belgian territory, the third-country national employee will also have to present an Annex 3 or Annex 15/A card, issued by the population department of the municipality where he resides. 

A digital database is said to be in the making which, according to the “only once” principle, ensures that documents already in the government’s possession do not have to be requested again by contractors. 

If the subcontractor does not provide the data, the contractor must give the direct subcontractor one reminder to do so and, if the documents are still not provided, notify the inspection. 

It is not the intention that the contractor checks the legality of the documents. Thus, the due diligence is not an inspection obligation. On the other hand, the contractor does have to notify the inspection services when the residence and work permits have expired (so the contractor will have to check the validity date of the documents). 

All documents should be requested before the start of the cooperation. There would be no need to request them again during the cooperation. 

Finally, it remains the case that the inspectorates must prove that a contractor is jointly liable for the illegal employment of his subcontractor. Here we are thinking of a situation where, although the contractor has requested and received the necessary documents, an inspection reveals third-country nationals whose presence was not reported to the contractor beforehand. After all, it cannot always be expected that the contractor had knowledge of the presence of these unreported third-country nationals. 

Conclusion 

The new legislation imposes additional obligations on contractors. A failure to act can have serious consequences. 

The aforementioned changes to chain liability have not yet entered into force. We await a decision from the Flemish Government as well as the publication of the implementation decree with the checklist of documents to be requested. However, we recommend making the necessary preparations in advance. This can be done by elaborating in the contracting agreement the modalities for requesting these documents. Of course, Van Havermaet can assist with this.