Belgium: New Rules On Posted Workers To Be Implemented In Belgium

As a result of the revised Posted Workers Directive, EU Member States are required to amend their posting rules before 30 July 2020. On 28 May 2020, the Belgian Parliament approved the draft Act on various provisions on the posting of workers. This article provides details of the key changes.

The main changes to the Posting Act of 5 March 2002 are as follows:

• Where posting lasts for periods less than 12 months the employer should (as before) comply with all salary and employment conditions arising from criminally sanctioned provisions and collective bargaining agreements that have been declared generally binding, with the exception of supplementary pension schemes.
• After 12 months (this can be extended to 18 months subject to notification with reasons), posted workers are also entitled to all statutory salary and employment conditions which are not criminally sanctioned (such as, for example, guaranteed sick pay) except those concerning the conclusion and termination of employment contracts and supplementary pension schemes.
• If another posted worker performs the same task at the same place, all the periods of the relevant posted workers will be accumulated for the duration of the replaced worker's employment.
• Allowances or reimbursement of expenditure to cover travel, board and lodging expenses for workers away from home for professional reasons arising from collective bargaining agreements that have been declared generally binding must only be granted to posted workers for travel to and from their regular place of work in Belgium and temporary assignments from this regular place of work to another place of work.
• Allowances specific to the posting are, as before, considered to be part of remuneration provided that they are not paid to reimburse expenses actually incurred. If it is not possible to determine which elements cover expenses actually incurred and which elements constitute remuneration, then the entire amount of the allowance will be considered as an expense allowance.

These amendments temporarily do not yet apply to the road transport sector.

In addition, the Act on temporary work, temporary agency work and the leasing of employees is also amended as follows:

• If a temporary agency worker is posted to Belgium from another country, the Belgian user company must inform the temporary work agency in writing (paper or electronically) about the essential employment conditions (i.e. working time, overtime, breaks, rest periods, night work, holidays, public holidays, salary, protection of certain categories of employees, equal treatment and discrimination). This obligation already applies in the road transport sector.
• In addition, the Belgian user company must also inform the (Belgian or foreign) temporary work agency in advance in writing if the temporary agency worker will be working in another EEA Member State or in Switzerland (this obligation does not yet apply in the road transport sector). This obligation also applies where other forms of allowed lease of personnel (such as an intra-group leasing) and employer groupings are used.

Finally, the Social Penal Code is also amended as follows:

• Non-compliance with the information obligations described above can be sanctioned with a level 2 sanction.
• In the context of a breach of the posting rules, a service provider can invoke mitigating circumstances if the posting conditions are not mentioned on the official national website of the FPS Employment, Labour and Social Dialogue.

The text of the draft Act is now definitive and only needs to be published in the Belgian State Gazette.