Posting of workers : new rules

Directive (EU) 2018/957 of 28 June 2018, revising the Posting of Workers Directive 96/71/EC, (hereafter “PWD”) required European member states to adapt their national posting rules by 30 July 2020. The Belgian legislator accomplished its task properly on time. The Belgian Act of 12 June 2020 regarding the posting of workers, which implements the PWD, was published on 18 June 2020 in the Belgian State Gazette.

We recall that posting refers to the situation whereby the employee is sent to another country by his employer to provide temporary services. Keep in mind that the concept of posting in terms of employment law should not be confused with the concept of posting in the field of social security.

We briefly summarize the essential aspects of the Belgian Act of 12 June 2020.

• Remuneration – during the first period of 12 months (extendable to 18 months subject to motivated notification by the employer or its representative), the employer should comply with all elements of remuneration and employment conditions which are rendered mandatory i) by laws/regulations providing criminal sanctions in the event of non-compliance, and ii) by collective bargaining agreements that have been declared universally applicable. Not all provisions of these collective bargaining agreements will be relevant:

– Provisions regarding payment of allowances or reimbursement of expenditure to cover travel, board, and lodging expenses for employees who travel for professional purposes will only be considered mandatory if these expenses are incurred by posted workers i) who are required to travel from and to their regular work place in Belgium, or ii) who are temporarily sent by their employer from the regular work place to another work place;

– Provisions regarding contributions to supplementary occupational pension schemes are not considered mandatory.

In a nutshell, this means that, with some exceptions (see above), all salary elements laid down in laws/regulations or collective bargaining agreements that are universally applicable, should be granted to posted workers. The impact of this change on a Belgian posting context is rather limited as Belgian law already provides for such obligation now (e.g. minimum wage).

• After this period of 12 months (or 18 months), the employer should also ensure all statutory remuneration and employment conditions which are not sanctioned by law (e.g. guaranteed sick pay). The rules concerning the procedures, formalities and conditions of the conclusion and the termination of employment contracts (including non-compete clauses) and supplementary occupational pension schemes are excluded.

If a posted employee is replaced by another posted employee, who performs the same tasks at the same work place, all posting periods of the posted employees concerned must be accumulated when calculating the duration of the posting.

• Information obligation – the Belgian user undertaking has the obligation to inform the temporary agency of the terms and conditions of employment in writing (on paper or electronically) when employees are seconded to Belgium.

• Sanction – failure to comply with the above mentioned information duty could in theory result in criminal liability or an administrative fine between 400 EUR and 4.000 EUR.

• Implementation – the new Belgian posting rules will take effect on 30 July 2020. The new rules will not apply to work performed before this date. However, the period of posting before 30 July 2020 shall be taken into account for the calculation of the period of posting. The additional conditions of employment (see second bullet) must therefore be applied only to performances delivered from 30 July 2020 onwards and this after the first 12 (or 18) months of posting.