By Act of 12 June 2020, the legislator transposed the European Directive on the posting of workers (2018/957) in Belgium.
From 30 July 2020 onwards, employers will be obliged to comply with new more protective rules regarding the working and pay conditions of posted workers.
Posting: what working and pay conditions should be applied?
The working and pay conditions to be observed in respect of posted workers will be determined according to the duration of the posting :
• First 12 months of posting: the employer must comply with the applicable working and pay conditions, insofar as they are provided for by legal or regulatory provisions sanctioned under criminal law (working hours, holidays, public holidays, wellbeing of employees, protection of pregnant women, non-discrimination, etc.) or by collective bargaining agreements made compulsory by Royal Decree (e.g. pay scales), with the sole exception of supplementary pension schemes ;
• Beyond 12 months of posting: the employer must comply with all the applicable working and pay conditions, even those provided for by provisions that are not subject to criminal sanctions (e.g. guaranteed salary in case of sickness), with the exception of the rules relating to the conclusion and termination of employment contracts (non-competition clause, notice periods, etc.) and supplementary pension schemes.
Allowances
Allowances granted by the employer and directly linked to the secondment, are considered to be remuneration, unless they are intended to reimburse expenses actually incurred (travel, accommodation, food).
Henceforth, allowances will be considered in its entirety to be reimbursement of expenses (and therefore excluded from the notion of remuneration) if it is not possible to determine which elements cover actual expenses and which elements constitute remuneration. Such allowances will therefore not be taken into account when assessing compliance with minimal wages.
Accommodation, travel and food expenses may only be granted to posted workers for:
• travel between the usual place of work in Belgium and another place of work in Belgium ;
• travel between the usual place of work in Belgium and a place of work in another country.
As a consequence, such allowances cannot be awarded to posted workers employed in a single fixed workplace in Belgium.
The situation of temporary agency workers
A Belgian employer who wishes to employ a temporary agency worker must henceforth inform the temporary employment agency:
• about the working and pay conditions applicable within his company, if the temporary agency worker is posted to Belgium;
• when the temporary worker will be posted to a Member State of the European Economic Area or to Switzerland, before the start of the posting assignment.
The latter obligation shall also apply in the case of the authorised leasing out of personnel.
If the Belgian employer fails to comply with these information obligations, he is liable to a « level 2 penalty » under the Social Penal Code (i.e. a criminal fine of between EUR 400 and EUR 4,000 or an administrative fine of between EUR 200 and EUR 2,000).
What to remember?
As of 30 July 2020, employers who post workers for more than 12 months will have to comply with more stringent working and pay conditions. In addition, new information obligations (subject to criminal sanctions) will be imposed on companies employing posted temporary agency workers.
Source: Law of 12 June 2020 on various provisions concerning the posting of workers, B.O.G., 18 June 2020.
