This newsletter gives a short overview of the latest legal and administrative developments when temporarily posting workers to Belgium. The topics covered are relevant for both foreign posting employers and Belgian service users.
1. The Limosa notification and the place of work: administrative clarifications
When filing a Limosa notification for your posted workers, you must, amongst others, identify the place of work. However, this is not always easy to do.
An employer has the option to communicate the place of work in four different ways: (i) by giving the exact address of a company; (ii) by stating the address where telework is being performed; (iii) by identifying a work site; or (iv) by indicating a region. To help posting employers, the social security administration has issued some practical guidelines and clarifications on when and how to use each of these options.
1. Company | – The company location if the posted worker performs the work at a fixed location.
– Up to 20 workplaces can be specified in a single notification, without having to declare at which specific workplace a posted worker will be active at what exact time.
2. Telework | – This option applies when telework is performed from Belgium regardless of whether the telework is performed on an occasional or regular basis.
– This option also applies for hybrid telework, i.e. if part of the time is worked from Belgium and part of the time is worked from the office abroad.
3. Worksite | – If no specific address of the workplace of the posted worker is available, then the minimum information identifying the worksite may be provided, i.e. the site name and the post/zip code/municipality.
4. Region | – When it is not possible to specify an address or a worksite because the work will be performed in many different places, it is sufficient to indicate a region.
– Due to fraud concerns, this option is not allowed for the construction sector and the temporary employment (“interim”) sector.
2. The revised Social Penal Code: a definition of “social dumping”, increased penalties and the introduction of new infringements
Since 1 July 2024, a revised Social Penal Code applies.[1] Many of the changes are relevant for posting employers as well. We outline some of the highlights below:
- The Social Penal Code now includes a legal definition of “social dumping”:
“A wide range of deliberate abusive practices and the circumvention of existing European and/or national legislation, including laws and generally binding collective bargaining agreements, that enable unfair competition by illegally minimising labour and operating costs, and that result in the violation of workers’ rights and exploitation of workers.“
Social dumping is often associated with non-genuine postings of workers and self-employed persons. The introduction of this legal concept in the Social Penal Code emphasizes that the fight against social dumping will also in the coming years remain a top priority of the various inspection services.
That being said, it is important to clarify that “social dumping” does not constitute a standalone infringement, subject to one specific penalty.
- Increased penalties for level 3 and level 4 infringements
Infringements are punished with a level 1, 2, 3 or 4 penalty. The penalties for level 3 and level 4 infringements have now been increased:
| Administrative penalty | Criminal penalty
| Old | New | Old | New
Level 3 | €400 – €4,000 | €800 – €8,000 | €800 – €8,000 | €1,600 – €16,000
Level 4 | €2,400 – €24,000 | €2,400 – €28,000 | €4,800 – €48,000 | €4,800 – €56,000
For example, non-compliance with the Limosa obligation is punished with a level 4 penalty.
- Introduction of new infringements
A few new infringements have also been introduced. From now on, and by way of example, an out-of-time renewal of a LIMOSA is also explicitly punished with a level 4 penalty.
Please also note the new limitations (and penalties) applicable in contractor chains. From 1 January 2025 it will no longer be possible for a subcontractor to subcontract the performance of the entire service contract that the subcontractor concluded with the main contractor. This rule will only concern certain sectors, such as the construction sector. More detailed information on this topic will be shared in a separate newsletter.
3. Checks now available online of the PDOK/OPOC debts of your foreign contractor active in the construction sector
As you probably know, in several sectors, such as when performing works on immovable goods, a withholding obligation applies when your contractor has social debts. In a nutshell, this means that you should withhold 35% from the invoice amount and pay it directly to the Belgian social security administration.
Whether a contractor has social debts, can be checked on the checkinhoudingsplicht.be/checkobligationderetenue.be website.
What are PDOK/OPOC contributions?
A foreign employer posting workers to Belgium must comply with the Belgian labour law provisions that are criminally enforced as well as the collective bargaining agreements that are declared generally binding.
A posting employer falling under the scope of application of the Joint Committee for the construction sector (JC 124) must pay contributions to the PDOK/OPOC for the financing of loyalty stamps, unless the posted employer already pays a similar benefit (e.g. an end-of-year bonus, a Christmas bonus, etc.) to the posted workers.
4. Extension of the presence registration for cleaning activities as from 1 September 2024 – transition phase until 31 December 2024
At any workplace where maintenance and/or cleaning activities of immovable property are performed on behalf of a client, the presence (arrival, departure and rest breaks) of each natural person (employees, self-employed, interim workers, posted workers, (sub)contractors, etc.) must be recorded electronically. To date, this obligation only applies to sites that are subject to a “declaration of works”. To register their presence, individuals should use the “Check In and Out at Work (CIaO)” application.
Until the end of this year, no penalties will be imposed for non-compliance, except in the case of fraud.
5. Upcoming: A new duty of care obligation in the fight against illegal employment in the Flemish region as from 1 January 2025
In the aftermath of some highly-publicised social dumping cases in the media, the Flemish government introduced a “duty of care”- obligation in its fight against bogus posting set-ups involving illegal employment.
A contractor is required to act in a diligent manner when contracting a direct subcontractor, and to try to prevent that such a direct subcontractor employs illegal third-country nationals or develops activities as a self-employed person without having obtained the required residence permits.
To do so, the contractor must not only include a written declaration in the services contract confirming that the direct subcontractor does not employ illegal third-country nationals. As from 1 January 2025, the contractor also has an obligation to ask the direct contractor to provide (to the extent applicable) certain information:
Always to be provided | – A valid passport of the posted worker or self-employed individual with a third-country nationality
Intra-community services | – A residence permit for an EEA country or Switzerland that is valid for more than 3 months
– L1-form (i.e. evidence of the Limosa notification)
– A1-certificate or evidence that the application to obtain an A1-certificate has been filed
For the employment of third-country nationals for whom a work authorisation is required (employees and self-employed individuals) | – Work permit or professional card and residence permit
– Dimona declaration
If the direct subcontractor does not provide the required information after a first reminder, then the social inspection services must be notified. The contractor does not have the obligation to verify whether the information received is correct.
To facilitate contractors, an online application will be set-up allowing consultation of some of the requested documents. This online application is not yet available.
