Recently, the law transposing the Directive 2018/957/EU concerning the posting of workers in the framework of the provision of services was published. It applies to employers from other Member States who wish to post workers to Belgium and entered into force on the 30th of July 2020. This is very important because cross-border posting is in many cases considered to be a source of fraud and unfair competition.
In an earlier article, we explained the legislation transposing the previous Directive 2014/67/EU.
Posting of workers is defined as the situation of a worker who carries out work in Belgium on a temporary basis and that:
- either habitually works on the territory of one or more countries other than Belgium, or
- is recruited in a country other than Belgium.
Directive 2018/957/EU concerning the posting of workers in the framework of the provision of services provides that posted workers enjoy equal pay and working conditions in the Member State of posting. The Directive makes a distinction between posting up to 12 months and posting exceeding 12 months, with the result that the length of the posting will determine which conditions will apply.
The Directive relates to pay and working conditions and has nothing to do with social security.
1. Remuneration and working conditions depending on the duration of the posting
1.1 Posting up to 12 months
For postings up to 12 months or less, the employer must comply with all remuneration and employment conditions that are determined by regulation or administrative provisions sanctioned by criminal law and collective agreements which are generally applicable, with the exception of the supplementary occupational retirement pension schemes.
This concerns, for example, holidays, public holidays, working time, worker welfare, non-discrimination, wage scales, etc. These provisions were already applied before the 30th of July.
1.2 Posting exceeding 12 months
For postings exceeding 12 months, the employer must apply all applicable remuneration and working conditions, including those who are not sanctioned by criminal law, such as guaranteed income in the event of incapacity for work. The provisions applicable to the conclusion and termination of employment contracts (i.e. dismissal rules) as well as supplementary occupational retirement pension schemes are excluded here.
To conclude, in case of a posting exceeding 12 months, the foreign employer has to respect all the rules concerning pay and working conditions in Belgium and not only the rules sanctioned by the Social Penal Code.
The law also contains an anti-abuse provision in case a posted worker replaces another posted worker for the same task (the same job) at the same place. This means that the period of posting of both workers together is taken into account for determining the period of 12 months.
The 12-month period may be extended by an additional period of 6 months, subject to reasoned notice before the expiry of the 12-month period.
2. Allowances and reimbursement of expenditure
The allowances that are directly linked to posting and that have to be paid by the employer are regarded as part of the remuneration to the extent that they do not relate to costs incurred in relation to posting, such as travel, board or lodging expenses.
Allowances for travel, board and accommodation costs must relate to costs incurred by the posted workers when they have to travel to and from their regular place of work in Belgium. The same rule applies when they are temporarily sent by their employer from their regular place of work in Belgium to another place of work.
If it is not possible to determine which parts of the allowance represent actual travel, board and lodging costs, the full amount of the allowance will be considered as reimbursement of costs. In that case, the allowance will not be taken into account to determine whether the required salary is paid.
3. Information requirement when foreign temporary agency workers are deployed
The Directive 2018/957/EU concerning the posting of workers in the framework of the provision of services also introduces new standards for temporary agency work and the posting of workers.
Belgian employers who employ foreign temporary agency workers have the following obligations:
- If a temporary agency worker is posted to a Belgian user undertaking from another Member State, the latter must inform the temporary work-agency in writing (electronically or on paper) about the employment and working conditions that apply to him or her.Employment and working conditions refer to working time, overtime, breaks, rest periods, nightshifts, holidays, public holidays, remuneration, protection of children and youth and mothers during breastfeeding, equal treatment of men and women and all measures to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.
- Inform the temporary work-agency in advance if a foreign temporary worker will be working in Switzerland or another member state of the EEA. The same obligation also applies to the permitted posting of a worker.
If the Belgian user-undertaking fails to comply with the information requirement, he risks a level 2 penalty, i.e. a fine of between € 400 and € 4,000 or an administrative fine between € 200 and € 2,000.
4. Not applicable to the transport sector
The rules of the revised Directive do not apply to the transport sector, except for the information requirement when a temporary agency worker is posted to Belgium.
Therefore, the old directive still applies on the transport sector.
Finally, the transposition or implementation of the Directive also has consequences for the Belgian employer who wishes to post a worker to another Member State. He has to apply the national rules of posting workers in that Member State where the worker is located. It is important to not lose sight of this matter.
— to www.lexology.com