Impact Posting of Workers Directive 2018-957
No later than 30 July 2020, the amendments to the Act of 5 March 2002 on the posting of workers in Belgium shall enter into force. The Act of 5 March 2002 had to be adapted following the 2018 amendments at European level to the Posting of Workers Directive 96/71, now Directive 2018/957. The purpose of these amendments is to combat unfair competition and to support the rights of posted workers.
Please note that this Directive is not applicable to the transport sector. Firstly, Europe will develop a so-called “mobility package” and then this specific regulation will have to be implemented into Belgian law again.
In the meantime, by 30 July, each EU member state will provide an official, national website on which all applicable working and wage conditions for work in their territory are listed.
What impact does this Directive have on the entrepreneur and his employees when they are posted to Belgium?
During the first 12 months of the posting, all legal and administrative provisions of Belgian labour law must be complied with, in so far as they are subject to criminal law, including the collective labour agreements that have been declared universally binding.
After this period of 12 months, all provisions of labour law, including those NOT subject to criminal law, will have to be complied with. With the sole exception of the procedures and formalities and conditions of the conclusion and termination of the employment agreement, including the non-compete clause.
Since almost all violations of Belgian labour law are subject to criminal law, when posting to Belgium, there will be little difference between the first 12 months and the period after.
However, entrepreneurs who were already familiar with posting to Belgium can be reassured about the impact of the new Directive 2018/957 and its implementation into Belgian law. After all, in the past, when implementing the old Directive 96/71, Belgium already went further than required by Europe, which means that the impact of the amendments for Belgium today remains limited.
So what will change with the new Posting of Workers Directive 2018/957?
The term ‘minimum wage’ was replaced by ‘pay’ in the Posting of Workers Directive, i.e. the full wage package as applicable in the host member state will apply from day 1.
It comes down to the fact that a posted employee must receive the same remuneration for the same work as a ‘local’ employee.
When comparing whether the applicable wage conditions of the host member state have been respected, it is not necessary to check each wage component separately. It is sufficient to look at the overall picture.
What does this mean for the reimbursement of the posted worker’s travel, meal and accommodation costs? Well, if a collective labour agreement provides for accommodation and meals for workers who are away from home in the course of their work, this also applies to workers posted to Belgium. In any case, in so far as it concerns travel to and from the usual workplace in the host member state or from the usual workplace in the host member state to another temporary workplace.
For certain sectors in Belgium, such as the construction sector, this would mean that the labour inspectorate’s earlier interpretation that reimbursements for board and lodging are payable simply for every day that the employee is away from his ‘home’ or family in the country of origin could no longer be upheld.
Drawing up a good posting appendix is also becoming more and more important. After all, if it is not clear whether a posting surcharge is a reimbursement of costs or should be included in the wage, the Directive, and now also the Belgian implementation of that Directive, assumes that the surcharge should be regarded as a reimbursement of costs. And, unfortunately, a reimbursement of costs cannot be included in the assessment of whether the wage package as it applies in the host member state has been complied with in its entirety.
Anti-circumvention provision and extension of the posting period
The employment periods of the employees who perform the same task at the same location must be added together to see if the 12 month limit is exceeded.
However, it is possible to extend this 12-month period by 6 months on condition that a motivated notification is sent to the Belgian labour inspectorate in time to postpone the application of the extensive package of working conditions by these additional 6 months.
Finally, there are also a number of changes concerning temporary work, temporary agency work and the provision of staff. The Belgian user is obligated to inform the temporary employment agency that posts temporary workers about the wages and working conditions applicable to the user: working time, overtime, breaks, rest periods, night work, holidays, public holidays, pay, equal treatment and discrimination. This may be done in writing, electronically or in the commercial agreement.
Even if the temporary worker is to work in another EEA member state or in Switzerland, the user must inform the temporary employment agency in advance. This obligation also applies to all forms of permitted provision of staff.
Avoid confusion regarding the terms used!
The term “posting” is used in both labour law and social security law. However, the laws and time limits are different:
The Posting of Workers Directive therefore only intervenes in labour law. In order to determine the applicable social security, Regulation 883/2004 remains fully applicable.
Publication date: 10 July 2020