New rules on the posting of workers

As announced in our newsflash of 9 July 2018, as a result of the revised Posted Workers Directive, EU Member States are obliged to amend their posting rules before 30 July 2020. On Thursday 28 May, the draft Act on various provisions on the posting of workers was approved by the Belgian Parliament. The text is now definitive and has only to be published in the Belgian State Gazette. In this newsflash we briefly describe the main changes.

Pursuant to the Posted Workers Directive, the Belgian Posting Act of 5 March 2002 stipulates that an employer who posts employees to Belgium must comply with all Belgian penally sanctioned salary and employment conditions, even if the employment contract continues to be governed by the law of their place of habitual employment (usually, the sending state).

The main changes to the Posting Act of 5 March 2002 are as follows:

  • Where posting lasts for periods less than 12 months the employer should – as before – comply with all salary and employment conditions arising from penally sanctioned provisions and collective bargaining agreements that have been declared generally binding, with the exception of supplementary pension schemes.
  • After 12 months (but extendable to 18 months subject to notification supported by reasons), posted workers are also entitled to all statutory salary and employment conditions which are not penally sanctioned (e.g., guaranteed sick pay) except for the rules concerning the conclusion and termination of employment contracts and supplementary pension schemes.
  • If another posted worker performs the same task at the same place, all the work periods of the relevant posted workers will be accumulated for the duration of the replaced worker’s employment.
  • Allowances or reimbursement of expenditure to cover travel, board and lodging expenses for workers away from home for professional reasons arising from collective bargaining agreements that have been declared generally binding must only be granted to posted workers for travel to and from their regular place of work in Belgium and temporary assignments from this regular place of work to another place of work.
  • Allowances specific to the posting are, as before, considered to be part of the remuneration, provided that they are not paid to reimburse expenses actually incurred. If it is not possible to determine which parts cover expenses actually incurred and which parts constitute remuneration, then the entire amount of the allowance will be considered as an expense allowance.
  • For the moment, these amendments do not yet apply to the road transport sector.

In addition, the Act of 24 July 1987 on temporary work, temporary agency work and the leasing of employees was also amended:

  • If a temporary agency worker is posted to Belgium from another country, the Belgian user company must inform the  temporary employment agency in writing (on paper or electronically) about the essential employment conditions (i.e., working time, overtime, breaks, rest periods, night work, holidays, public holidays, salary, protection of certain categories of employees, equal treatment and discrimination).
  • In addition, the Belgian user company must also inform the (Belgian or foreign) temporary employment agency in advance in writing if the temporary agency worker will be working in another EEA Member State or in Switzerland (but for the moment not yet applicable to the road transport sector). This obligation also applies in the context of other forms of permitted leasing of personnel (e.g., an intra-group leasing) and employer groupings.

Finally, the Social Penal Code was also amended:

  • Non-compliance with the above information obligations can be sanctioned with a level 2 sanction.
  • In the context of a breach of the posting rules, a service provider can invoke mitigating circumstances if the posting conditions are not mentioned on the official national website of the FPS Employment, Labour and Social Dialogue.

Action point

Bear in mind that more national legislation may apply as of 30 July 2020 in the context of a posting within Europe. In addition, in the event of temporary agency work and permitted leasing of personnel, a new information obligation will be imposed on the user company.

Related : Claeys & Engels

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