Act holding various provisions regarding posting of workers approved by parliament
09 Jun 2020
In its plenary session of 28 May 2020, the Belgian Chamber of Representatives adopted the Act holding various provisions regarding the posting of workers, which is aimed at transposing Directive no. 2018/957 into Belgian law. Although the impact of this Act on the actual employment and remuneration conditions that are applicable to workers posted to Belgium is limited, some important new concepts regarding the posting of workers are introduced, which will have to be taken into account going forward.
The Posted Workers Directives - a brief history
In 1996, Directive no. 96/71/EC (the “Posted Workers Directive”) was adopted, which is applicable to workers who, in the context of transnational services provided within the European Economic Area (EEA) and Switzerland, are temporarily posted to a Member State that is not the state in which they normally work. The Posted Workers Directive is aimed at securing a balance between the protection of these workers, free movement of services within the EU and the principle of fair competition, by stipulating that various core labour-law provisions (such as minimum wage, safety and working hours) applicable in the host Member State must - as a minimum - also be applied in full to workers who are posted to the host Member State.
In order to continue to secure the above-mentioned balance and to adapt the 1996 Posted Workers Directive to new economic and labour market conditions, the latter was revised in 2018 by means of Directive no. 2018/957. The overarching objective of this directive is to ensure “equal pay for equal work in the same place”.
Note that the above Directives determine the labour law position of a posted worker but do not govern his social security position. To determine the social security position of a posted worker, the provisions of Regulation (EU) no. 883/2004 and its implementing Regulation (EU) no. 987/2009 should be taken into account.
Transposition of Directive no. 2018/957 into Belgian law
On 28 May 2020, the draft Act holding several provisions regarding the posting of workers - transposing the provisions of Directive no. 2018/957 into Belgian law - was adopted by the Belgian Chamber of Representatives.
The 1996 Posted Workers Directive was transposed into Belgian law by means of the Act of 5 March 2002, and the recently adopted Act thus mainly alters the Act of 5 March 2002. In addition, adjustments are made to the Act of 24 July 1987 on temporary work, temporary agency work and hiring-out of workers and the Social Penal Code.
Broad transposition of the 1996 Posted Workers Directive
In this respect, it’s important to note that, in 2002, Belgium decided to broadly transpose the 1996 Posted Workers Directive, resulting in the fact that - as from day one of the posting - not only the Belgian core labour law provisions are applicable, but rather all employment and remuneration conditions that are laid down in legal, administrative or conventional provisions, the violation of which may be criminally sanctioned. This includes provisions that are laid down in collective bargaining agreements that have been declared universally applicable. As such, the majority of the Belgian labour law provisions are currently already applicable to posted workers as of the first day of their employment in Belgium.
Consequently, the transposition of Directive no. 2018/957 will have significantly less impact in Belgium, compared to Member States that opted to transpose the 1996 Posted Workers Directive more conservatively.
Below, we will further elaborate on the topics that do entail changes to the Belgian regulations on posting of workers.
Long-term posting
A new concept introduced by Directive no. 2018/957 is the concept of long-term posting, i.e. a posting extending beyond a period of 12 months, with the possibility of a one-time extension with another 6 months, following a reasoned notification by the posting employer. As from the moment the posting exceeds this threshold, all terms and conditions of employment of the host Member State that are laid down in legal or administrative provisions or in universally applicable collective bargaining agreements will become applicable instead of just the core labour law provisions that are applicable during the first 12 (or 18) months of the posting. The only exceptions in this respect are the provisions on concluding or terminating an employment agreement - including provisions on non-compete clauses - on the one hand and provisions on supplementary occupational pension schemes on the other hand.
This distinction between postings, depending on their duration, will be transposed into Belgian law by the recently approved Act. The procedure for notifying the 6-month extension of the initial posting period will be implemented by Royal Decree at a later date.
However, again, given Belgium’s broad transposition of the 1996 Posted Workers Directive, the difference between the labour law provisions applicable during the first 12 (or 18) months of the posting and the extended package of labour law provisions that will be applicable after this first period will be less distinct in Belgium compared to other Member States. As mentioned above, the majority of the Belgian labour law provisions is already applicable to a posted worker as from day one, more specifically all employment and remuneration conditions that are laid down in legal, administrative or conventional provisions of which the violation is criminally sanctioned. When the posting duration exceeds 12 (or 18) months, all employment and remuneration conditions - even if they’re not criminally sanctioned - will become applicable, save for the above-mentioned exceptions. An example of provisions that will still become applicable when the posting duration exceeds 12 (or 18) months are the articles of the Employment Agreement Act of 1978 on periods of suspension of the employment agreement during which the employee is entitled to his normal salary (e.g. paid leave in the case of events in the employee’s private life, such as marriage and birth of a child, or guaranteed daily salary in the event of force majeure on the part of the employee).
The transposition into Belgian law of the provision on long-term posting also includes an anti-abuse provision: if the posting employer replaces a posted worker with another posted worker who performs the same task at the same place, the duration of the posting will - in order to determine whether the 12-month (or 18- month) threshold is met - be the cumulative duration of the two posting periods.
Reimbursement of travel, board and lodging costs
The Act of 5 March 2002 will be adjusted so as to include that the reimbursement of travel, board or lodging costs for workers who undertake trips for business reasons as laid down in a Belgian collective bargaining agreement that has been declared universally applicable, will apply to workers posted to Belgium. This is, however, only the case for costs incurred by the posted worker in the process of travelling from the regular place of work in Belgium to another place of work in Belgium or abroad.
Posting allowances
The currently applicable principle that posting allowances - insofar as they don’t cover actual posting-related expenses - can be taken into account when determining if the remuneration of a worker posted to Belgium is compliant with the Belgian salary requirements will continue to apply. However, the recently approved Act transposing Directive no. 2018/957 adjusts this principle to include the fact that, if it can’t be determined which elements of the posting allowances cover actual costs and which elements are to be considered as remuneration, the entire allowance will be deemed to constitute a reimbursement of costs.
Companies’ information obligation for employees put at their disposal
Directive no. 2018/957 introduced a new information obligation for companies that use temporary agency workers who are posted from another Member State. These temporary agency workers must benefit from the same employment and remuneration conditions as the host company’s local employees and, to that end, the host company must inform the temporary work agency in writing (on paper or electronically) about these employment and remuneration conditions.
This information obligation will be transposed into Belgian law and will thus be applicable to Belgian companies that use temporary agency workers posted from another Member State as from the entry into force of the recently approved Act (also see below).
Directive no. 2018/957, however, also contains an additional information obligation that supplements the one above and is best explained by the following example. If a French temporary work agency posts one of its temps to work in Belgium for a Belgian company and that Belgian company decides to re-post that posted worker to temporarily work in the Netherlands, the Belgian company must inform the French temporary work agency of this re-posting before it actually takes place. This way, the French employer can make sure that it complies with the Dutch employment and remuneration conditions that are applicable to workers posted to the Netherlands.
The above additional information obligation will be equally transposed into Belgian law and will not only be applicable for Belgian employers working with transnationally posted temporary agency workers but also for Belgian employers that use employees who are lawfully put at their disposal (either by a Belgian company or not) and decide to post them to another EEA Member State or Switzerland. Also in this event, the Belgian user undertaking will have to inform the employer in writing (on paper or electronically) prior to the posting outside Belgium.
The recently approved Act transposing Directive no. 2018/957 adjusts the Social Penal Code and introduces a sanction of level 2 (either a criminal fine of EUR 400 to EUR 4,000 or an administrative fine of EUR 200 to 2,000) in the case of non-compliance with the above new information obligations.
Information hub for foreign employers
Since the entry into force of the Posted Workers Enforcement Directive, Member States must ensure that the information about the terms and conditions of employment that are applicable to workers posted to their territory is easily accessible on a dedicated website.
In Belgium, such information can be found on the website of the Federal Public Service (FPS) in charge of Employment, Labour and Social Dialogue.
Directive no. 2018/957 contains a provision that states that, if the information about the terms and conditions of employment is not available on a Member State’s dedicated website, this will have to be taken into account when determining the sanction in the case of non-compliance with that Member State’s posting regulations. This principle will be transposed into Belgian law by including the absence of sufficient information on the website of the FPS Employment, Labour and Social Dialogue as a new mitigating circumstance in the Social Penal Code, in the case of non-compliance with the Belgian employment and remuneration conditions by a foreign employer posting workers to Belgium.
Entry into force
The Act transposing Directive 2018/957 into Belgian law is envisaged to enter into force on 30 July 2020 (the deadline for transposing the directive into local legislation). The Act must, however, still be published in the Belgian Official Gazette before being able to enter into force.
Note, however, that - as stated in article 3 of Directive no. 2018/957 - the provisions of this new Act will not apply to the road transport industry until a road transport-specific European legislative act on posting drivers in that industry has been adopted.
Key takeaways
Although the transposition of Directive no. 2018/957 into Belgian law seems to have a limited effect on the actual employment and remuneration conditions that must currently already be complied with by foreign employers that post workers to Belgium, it does provide a number of important clarifications and introduces the concept of long-term posting.
In addition, a new information obligation is established for Belgian companies that call on the services of posted temporary agency workers or re-post employees who are lawfully put at their disposal to another Member State. For those companies, this new information obligation will have to be taken into account going forward.
If you are looking for more information about the transposition of Directive no. 2018/957 into Belgian law or about the regulations on posting of workers in general, feel free to reach out.
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