New rules in case of secondment

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Date:
22 Dec 2016

The Act of 11 December 2016, which transposes the Enforcement Directive (2014/67/EU) into Belgian law was published in the Belgian State Gazette this past Tuesday. This act introduces some novelties with regard to the posting of workers.

As announced in our 5 June 2014 newsflash , the Posted Workers Directive (96/71/EC), which lays out the “hard core” of the terms and conditions of employment in case of secondment within the European Union or Switzerland, was strengthened by the Enforcement Directive (2014/67/EU).

The Act of 11 December 2016 provides that employees who are posted from Belgium to another Member State or Switzerland and who start proceedings against their employer for the non-respect of the Posted Workers Directive (96/71/EC) and/or the Enforcement Directive (2014/67/EU) may not be subjected to any unfavourable treatment.

The Act also introduces a list of criteria to identify a genuine posting. In particular, by means of two non-exhaustive lists with factual elements one can assess if, on the one hand the worker temporarily carries out his or her work in Belgium and, on the other hand, if the foreign posting employer genuinely performs substantial activities in the Member State of establishment. These lists of elements can be added to by Royal Decree. Moreover, foreign employers who post workers to Belgium must designate a contact person (natural person) who will liaise on their behalf with the Belgian social inspectorate. The name of this contact person must be communicated to the social inspectorate through a procedure yet to be determined by Royal Decree.

In addition, the social inspectorate can request the posting employer to make available several documents with regard to the posted worker. These include:

(i) a copy of the employment contract of the posted worker (or equivalent document),
(ii) information about the payment of wages and benefits of the posted workers and the conditions of repatriation,
(iii) time-sheets and
(iv) proof of payment of wages.

The employer should keep these documents at the disposal of the social inspectorate for one year and provide, at the request of the authorities, a translation of these documents into one of Belgium’s official languages or into English.

Furthermore, a new complex system of joint liability is introduced for remuneration debts in the construction industry. This concerns a liability system for the direct contractor. This system will exist next to the existing system of joint liability for remuneration debts in high‑risk sectors and the system of joint liability in case of employment of illegal non-EU citizens.

Finally, the Act provides for a European system to facilitate the recovery of administrative penalties and/or fines for the non-respect of the posting rules in other EU Member States (and vice versa). 

 

> Action point:

The rules concerning the enforcement of remuneration and employment conditions for postings to Belgium have been strengthened. Keep this new legislation in mind.