Posting of workers - a public debate in need of nuance?
26 Feb 2020
In a newspaper article on posting to Belgium - published last week in “De Standaard” -, a somewhat single-sided view on the topic was presented. The article (written in Dutch), which is titled “Foreign workers take a detour to Belgium”, focuses on how non-EU nationals are posted to Belgium from another EU Member State (where they first obtained a residence and work permit), in the process “avoiding” the Belgian rules on economic migration. The article makes a number of assertions that warrant some sidenotes.
Posting of workers continues to be a matter of intense debate and, since we’ve noticed that some aspects of posting are given too little exposure in press coverage on this topic, we’d like to take this opportunity to also inject some nuance into the debate on posting in general.
Posting of third-country nationals and the “Vander Elst” route
As mentioned above, last week’s article in “De Standaard” focused on the posting of third-country nationals, more specifically third-country nationals who are posted to work in Belgium through the so-called “Vander Elst” route. This refers to the European Court of Justice’s “Vander Elst” judgment, which states that - if a third-country national has obtained a residence and work permit in one EU Member State - he can be posted to work in another Member State, without having to first obtain these permits in that other State.
This means that, for example, a Brazilian national who obtains a residence and work permit in Portugal can be posted by his Portuguese employer to work in Belgium without having to obtain a Belgian single permit. If a Belgian company would like to hire the same Brazilian national directly, a single permit would, however, have to be obtained. It can be argued that it could prove to be difficult to obtain a work permit for most of the posted workers that find themselves in such a scenario because it mainly concerns low-skilled or medium-skilled workers for whom strict economic migration rules apply in Belgium. It’s tempting to conclude from the foregoing that a “Vander Elst” posting is a loophole in the legislative framework on posting and that these workers will escape any control by the Belgian authorities, but - again - the reality is more nuanced than that.
It’s first of all important to point out that the ECJ’s “Vander Elst” judgment is based on a fundamental EU principle: the freedom for companies located in one Member State to provide services in another Member State with their staff. Rather than being a loophole, it’s therefore an essential part of the EU’s guiding principles. Next, it should be noted that - for workers who are posted to Belgium on the basis of the “Vander Elst” principle - a prior Limosa notification must be filed with the Belgian social security authorities. As a result, the social inspectorate services can still monitor and verify whether for these posted workers the - quite severe - Belgian legislation on - for example - minimum wages and working time are complied with. Finally, although the posted workers in question do not have to apply for a single permit before coming to work in Belgium, they will still have to obtain a residence permit once their work in Belgium exceeds 90 days.
Posting in figures - a nuanced picture
The public’s view on posting mostly revolves around the posting streams from Eastern European countries such as Poland and Romania to Belgium and the examples of - clearly existing - social dumping or social fraud in, for example, the transportation industry. Needless to say, combating these two phenomena should be a priority.
However, it’s also important to shed a light on an aspect of the posting debate that is often overlooked: the majority of the employees who are posted to work in Belgium are EU15 nationals (i.e. nationals of countries that joined the EU before 2004). A study from the University of Antwerp’s Centre for Social Policy - which is also cited in the above-mentioned article in “De Standaard” - shows that, in 2018, 51% of the workers who were posted to Belgium were EU15 nationals, with a large part consisting of Dutch, French and German nationals.
These figures paint a more nuanced picture compared to what is generally dealt with in the public debate on this topic and clearly show that inbound postings are not inseparably linked to the pursuit of cost savings, let alone to social dumping, but rather form part of the Belgian labour market and are testament to the ever-increasingly interlinked European single market. Finally, we are curious to see, once the UK “has its borders back”, where they will find their low-skilled workers in the future...
Need for monitoring and enforcement
We believe that there is currently no need for stricter legislation on posting of employees; further restricting the possibility of posting would possibly negate the positive impact the majority of postings have on the Belgian labour market. However, in order to combat undesirable posting excesses such as social fraud, there is a predominant need for monitoring and enforcement of the current legal framework, for example through extensive control of compliance with the Belgian minimum wages and working time legislation. The fact that this has been a top priority of the Belgian inspectorate services for some years now is promising. That said, a European social inspection would even be better.
Conclusion
It is - to a certain extent - understandable that the public debate on posting of employees is usually centred around the high-profile case of social fraud. However, sufficient nuance is required in order to keep the focus on the fact that posting of workers also has a positive proven track record and, moreover, is an intrinsic part of one of the fundamental EU principles - the freedom to provide services. Our legislation is already severe, and enforcing the current legal framework should be considered of primary importance in Belgium (but also in the EU).
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