Secondment regulation becomes stricter

On 30 September 2016 the Council of Ministers approved a draft law with several provisions on the secondment regulation of employees.

This draft law is intended to transpose European Directive 2014/67/EU on the enforcement of Directive 96/71/EC concerning the secondment regulation of workers in the framework of the provision of services into Belgian labour law.

The draft law consists of four groups of provisions:

1) the protection of the employee who is posted from Belgium to another state of the European Economic Area or to Switzerland;

2) the concept of "" and the related problem of the inspection of the working conditions, as broadly conceived;

It will be possible for the inspection services to ask an employer who posts employees to Belgium for four types of documents:

• a copy of the posted worker’s employment contract;
• an overview of the working hours;
• proofs of salary payment (including respect of minimum wages);
• miscellaneous information.

Prior to the employment of the posted employees in Belgium, the foreign employer will have to designate a "contact person", whose mission will be to provide the inspection services with the social documents necessary for inspection. The contact details for this contact person will have to be included in the Limosa declaration. This will be further regulated later by a Royal Decree.      

Moreover, the draft law provides that the inspection services may demand a translation of the social documents into one of the national languages (or into English).

The new rules will make a more thorough inspection by the inspection services possible.

3) specifically for the construction sector: the introduction of a new joint and several liability for salary debts of the direct co-contracting party;

The Salary Protection Act already contains a number of regulations concerning joint and several liability for salary debts. A new regime would now be added specifically for the construction sector.

In this new regulation as well, the joint and several liability would be restricted to future debts, after notification by the inspection services, unless the jointly and severally liable party has not demonstrated “the necessary care”. One might work with an obligation to include a specific clause in the subcontracting agreement. The new system should apply for the salary that is owed to all employees employed in Belgium, both the subcontractor´s own employees and posted workers.

4) the establishment of a European system of cross-border enforcement of administrative sanctions and fines. 

The foregoing is still under reservation, given that this draft law has yet to be approved by the Parliament. However, it is already clear that the rules on posting foreign employees will be tightened up significantly.

Source: FPS Chancellery of the Prime Minister, Directorate-General for External Communication - press releases dated 17 June 2016 and 30 September 2016

For more information on this topic, you can consult Sébastien van Damme (author) and Sara Cockx (author and department head).