Belgium welcomes the third highest number of posted workers in the European Union. Employers sending posted workers to Belgium face obligations and liabilities according to the stipulations of the EU Posted Workers Directive. These obligations include prior notifications of posting, appointment of a liaison officer for the authorities and the keeping of certain social documents, and respecting the Belgian labor, salary and employment conditions. Recently, some of the conditions were amended. Let’s see how this works now.
What are posted workers
According to the European Commission, the definition of a “posted worker” (sometimes called “seconded worker”) is an employee who is sent by his employer to carry out a service in another EU Member State on a temporary basis, in the context of a contract of services, an intra-group posting or a hiring out through a temporary agency.
Employees who are not subject to the Belgian social security and who come to work in Belgium on a temporary or part-time basis, need to be able to present proof of the Limosa declaration before starting their employment activities.
It is the responsibility of the employer abroad of these posted employees to apply for the Limosa declaration.
The Belgian host company on the other hand, has the obligation to notify the authorities if proof of the Limosa is missing.
The liaison officer is the employer’s contact person with the Belgian inspectorate whose name must be mentioned on the Limosa declaration.
It is not required that the liaison officer is domiciled in Belgium. It can be any person, the foreign employer himself when he is a physical person, an employee of the employer or a third party.
The liaison officer is responsible for the keeping of the mandatory social documents, and to provide these documents on request of the Belgian social inspectorate in order to allow them to verify compliance with Belgian working conditions.
Labor, salary and employment conditions
Main principle of the EU Posted Workers Directive
Posted workers are subject to the stipulations of the EU Posted Workers Directive. This directive determines that posted workers are entitled to a set “hard core” minimum terms of employment conditions in the host country, when these conditions are more favorable compared to the sending country. This set of rights consists of:
- minimum rates of pay;
- maximum work periods and minimum rest periods;
- minimum paid annual leave;
- the conditions of hiring out workers through temporary work agencies;
- health, safety and hygiene at work;
- equal treatment between men and women.
Working and remuneration conditions
In Belgium, following conditions are applicable as of July 30, 2020 for all sectors with the temporarily exception of the road transport sector.
If the secondment lasts less than 12 months, the employer must comply with all working and remuneration conditions that are criminally sanctioned and result from legal provisions and collective bargaining agreements made compulsory by Belgian Royal Decree with the exception of supplementary occupational pension schemes.
After the period of 12 months, posted workers are entitled to all statutory working and remuneration conditions that are not criminally sanctioned (such as for example guaranteed salary) excluding the rules regarding the conclusion and termination of the employment contract and supplementary occupational pension schemes. This initial period of 12 months is renewable up to 18 months with a motivated notification to the Belgian Federal Public Service for Employment.
If the employer replaces a posted worker with another posted worker performing the same task at the same place, the duration of the posting will be calculated by adding up the duration of the posting periods of the individual posted workers concerned in order to determine the period of 12 months.
Allowances for travel, meal or accommodation costs for employees who are abroad for professional purposes and that result from collective bargaining agreements made compulsory by Royal Decree, should only be granted to workers who are posted to Belgium for travel to and from their regular place of work in Belgium or when these workers are temporarily sent by the employer from that regular place of work to another regular place of work.
Allowances directly related to the posting are considered as a part of the remuneration to the extent that these are not paid as a reimbursement of actual expenses (such as travel, meal or accommodation costs).
If it cannot be determined which elements of the allowance cover actual expenses and which elements are actual salary, the entire amount of the allowance will be considered as a reimbursement of expenses. In that case, the allowance will not be taken into account in order to determine whether the required salary has been paid.
Keep in mind that a copy of the workers regulations must be kept at every place where posted employees are employed. Posted workers who are working 12 months or more in Belgium, are obliged to have Belgian social documents. Work regulations are part of the social documents. According to the applicable legislation, these documents have to be kept with a legal representative of the foreign employer. More information about workers regulations can be found in the post “Mandatory work regulations for employees: Payroll Pitfall nr 3“.
Temporary agency workers
Keep in mind there are particular regulations for temporary agency workers who are posted to Belgium, with a temporarily exception for temporary agency workers in the road transport sector.
A Belgian host company must inform the temporary employment agency on paper or digitally about the applicable employment and working conditions within the company, when a temporary agency worker is posted from another country to Belgium .
The Belgian host company of the temporary agency workers must give the (Belgian or foreign) temporary employment office prior written notice if the temporary agency worker will work in another EEA state or Switzerland.
Other types of employees
The number of posted employees to Belgium is growing, but this type of employee is still a minority on the Belgian labor market. More information about other types of employees can be found in the article “White collar workers, blue collar workers and 9 other types of employees in Belgium“.