Revision Posted Workers Directive: Advice of the NLC
In a previous news flash dated 31 October 2018, we already informed you that the revision of the Posted Workers Directive will probably have little impact on secondments to Belgium.
To refresh your memory, the Posted Workers Directive determines which wage and working conditions of the host member state are applicable in case of posting. In June 2018, the Posted Workers Directive was amended (read: strictened).
For secondments to Belgium, as mentioned above, not much will change: Belgium was already stricter than it should have been before the revision of the Directive.
Article 5 of the Act of 5 March 2002 transposing the Posted Workers Directive into the Belgian legal system provides that all working and wage conditions that are punishable by criminal law are applicable in the case of temporary employment in Belgium.
Since almost all Belgian labour law is punishable by criminal law, you understand that Belgium already took a very broad approach when it was first transposed.
The revised Posted Workers Directive must be transposed into the Belgian legal system by 31 July 2020. A preliminary draft law is currently on the table that has already been submitted to the National Labour Council for its advice.
With this news flash, we inform you where, according to the National Labour Council, the focus should be regarding the transposition of the Directive.
The advice of the NLC clearly shows that the focus should be on ‘prevention’. The NLC sees an important role for the website of the Federal Public Service Employment, Labour and Social Dialogue (www.minimumlonen.be).
The NLC indicates that it is often difficult for Belgian companies to know the applicable working conditions on the basis of the applicable Joint Committee, let alone for foreign companies.
In Belgium, the question of which working conditions are applicable always starts with the applicable Joint Committee, the social consultation body per sector.
The NLC therefore requests that a clear and transparent explanation be provided on the aforementioned website to enable foreign companies to:
determine the applicable Joint Committee;
determine the amounts included in the concept of wage;
determine which additional conditions will apply after a period of 12 months (or 18 months if extended).
After all, the Directive stipulates that, in the absence of clear information, this should be taken into account when determining the sanction in the event of non-compliance.
Of course, it remains to be seen which given advice will be taken into account by the legislator. Very recently, on 13 January, the Federal Public Service Employment, Labour and Social Dialogue website was given a new look.
According to a press release of 17 January from the Council of Ministers, the preliminary draft law is currently before the Council of State for its advice.
To be continued…
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Publication date: 31 January 2020