Belgium has made some changes to the Posting Act, primarily around labor, salary, and employment conditions.
Summary of key changes:
- If employees are posted for a period of fewer than 12 months, the employer should comply with all salary and employment conditions arising from criminally sanctioned provisions and collective bargaining agreements that have been generally declared binding, except for 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 (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 were 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 if 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.
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 to the road transport sector.
Also, 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 to the road transport sector). This obligation also applies where other forms of an allowed lease of personnel (such as 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 (criminal fine of 400 to 4.000 EUR or an administrative fine of 200 to 2.000 EUR per employee with a maximum of 100 employees).
In the event of an infringement, a foreign service provider will be able to invoke extenuating circumstances if the relevant working and remuneration conditions are not mentioned on the FPS Employment’s website.
In conclusion:
- The Act will immediately affect pending posting periods.
- If several posted workers replace each other to perform the same work at the same location, the total duration of activity of such a chain of posted workers will be considered to determine when the 12 months is reached.
- The 12 months can be extended by another six months provided that the posting employer sends a reasoned notification to the designated officers.
- Any breach of these information obligations could result in criminal sanctions.