Implementation of the new EU rules on posting of workers into the Belgian legislation

The Act of 12 June 2020 relating to diverse matters of posting of workers to Belgium was published in the Belgian Official Gazette on 18 June 2020 and will enter into force on 30 July 2020. This act mainly amends the Act of 5 March 2002 on working, wage and employment conditions in the event of the posting of workers in Belgium and compliance therewith (hereinafter the ‘Posting of Workers Act’) and the Act of 24 July 1987 on temporary work, temporary agency work and the posting of workers for the benefit of users (hereinafter the ‘Temporary Agency Work Act’). The purpose of the Act of 12 June 2020 is to implement EU Directive 2018/957 of the European Parliament and of the Council of 28 June 2018 amending Directive 96/71/EC concerning the posting of workers in the framework of the provision of services (the ‘Posting of Workers Directive’) into the national legislation (which had to be done before 1 August 2020).

Revision of the nucleus rules by Directive 2018/957

The most ground-breaking revision of the Posting of Workers Directive is the adaptation of the so-called nucleus rules. These hardcore rules contain a list of working conditions of the host country to which posted workers are entitled during their employment in the host country.

The renewal by Directive 2018/957 consists of three points:

First, in the nucleus, the element "minimum rates of pay" is replaced by "remuneration". This amendment translates the principle of equal pay for equal work. Seconded workers will thus have to be paid as much as a normal worker performing the same work.
Second, Directive 2018/957 introduced two new subjects in the nucleus. On the one hand, it concerns the conditions of accommodation of workers where the employer provides accommodation to workers who are not at their usual place of work and, on the other hand, it concerns allowances or reimbursement of expenses for travel, meals and subsistence for workers who are away from home on a professional basis.
Thirdly, where the posting exceeds 12 months, a more comprehensive set of working and employment conditions of the host country must henceforth be applied. In other words, if the actual duration of the posting exceeds 12 months, all the other working and employment conditions of the host country laid down by the laws, regulations, administrative provisions and collective agreements which have been declared universally applicable must be applied, however with the exclusion of those relating to the conclusion and termination of the employment contract, including competition clauses and supplementary pension schemes.

Applicable rules to workers posted to Belgium

Although the revision of the nucleus rules is of great importance at European level, it has less impact on Belgian law. After all, the Belgian Posting of Workers Act has never taken much notice of the nucleus enumeration in the Posting of Workers Directive by using a broad and vague description of the working conditions to be applied.

The old Article 5, §1 of the Posting of Workers Act stated that the working, wage and employment conditions determined by legislative, administrative or conventional provisions that are punishable by criminal law apply to posted workers. The new wording of this article provides for the general principle of the application of the working, wage and employment conditions determined by legislative, regulatory or administrative provisions that are subject to criminal sanctions, on the one hand, and by the conventional provisions that have been declared universally binding, on the other hand. In terms of content, this does not mean any change, but the article now makes it explicitly clear that these must be collective agreements that have been declared universally binding. The Act of 12 June does not explicitly mention anything relating to the change from “minimum rates of pay” to “remuneration” as the national rules regarding wages were already applicable under the old Posting of workers Act.

Expenses for travel, meals and subsistence

By way of derogation from the general rule, universally binding collective bargaining agreements which provide for the payment of allowances or reimbursement of expenses for travel, meal and subsistence for employees who are away from home on a professional basis, will only be applied to the extent that they relate to the travel, meal and subsistence costs incurred by posted workers when travelling to and from their usual place of work in Belgium, or when they are temporarily sent by their employer from that usual place of work to another place of work.

The allowances specific to the posting shall be regarded as part of the wages to the extent that they are not paid as reimbursement of expenses actually incurred in connection with the secondment, such as travel expenses, subsistence expenses and food expenses. In other words, the allowances paid by an employer to a posted employee to cover travel, meal or accommodation expenses incurred by the employee in connection with his secondment can never be regarded by the employer as part of the remuneration. If the terms and conditions of employment applicable to the employment contract do not show whether or which parts of an allowance in connection to the posting are paid as reimbursement for costs incurred and actually incurred in connection with the posting or which are part of the remuneration, the full allowance shall be deemed to have been paid as reimbursement for costs.

Postings longer than 12 months

If the posting period exceeds 12 months, all other employment conditions of the host country must from that time onwards be respected, except for those relating to the conclusion and termination of employment contracts. The new Art. 5, §2 of the Posting of Workers Act speaks of the working, wage and employment conditions laid down in:

the laws, regulations and administrative provisions with the exception of the provisions on procedures, formalities and conditions for the conclusion and termination of employment contracts, including non-competition clauses, and
the conventional provisions declared universally applicable with the exception, on the one hand, of the provisions on the procedures, formalities and conditions for the conclusion and termination of the employment contract, including the non-competition clause and, on the other hand, of the provisions providing for contributions to supplementary pension schemes.

The only difference with the applicable rules which should be applied during the first 12 months is that the condition that they need to be punishable by criminal law is no longer valid. As most labour law provisions are enforced by the Social Criminal Code, the change after 12 months does not seem to be very important for workers posted to Belgium. However this does mean that most of the provisions of the Employment Contracts Act, such as the provisions on guaranteed pay in the event of sickness or accident and the provisions on short leave, become applicable (but not the ones regarding the conclusion and termination of employment agreements).

Work performed before 30 July 2020 must also be taken into account for the calculation of the total duration of the posting, in case the posting continues thereafter. This rule does not apply if a notification is sent to the social inspection – in accordance with the provisions of the Royal Decree on various measures relating to the posting of workers (which still needs to be published) – providing a reason why the posting lasts longer than 12 months. The initial period can be prolonged with another 6 months (for a total duration of 18 months).

Moreover, the 12 (or 18) months for a posting cannot be circumvented by simply replacing the posted worker by another posted worker. Article 5, §2, paragraph 2 of the Posting of Workers Act provides that if the employer replaces a posted worker with another posted worker and performs the same task in the same place, the employment periods in Belgium of each posted worker must be added together. In order to be able to assess whether the second posted worker actually performs the same task in the same place as the first posted worker he replaces, the nature of the services to be provided, the work to be performed and the address(es) of the place of employment can be taken into account.

Information duty in case of temporary agency work

Another new rule in the Posting of Workers Directive is that in case of temporary agency work, the user must inform the posting employer (temporary employment agency) of the working conditions that are in force in the company.

In order to implement this obligation in Belgian labour law, a new article was introduced in the Temporary Agency Act, which states that if the temporary worker is posted from another country to a user established in Belgium, the user informs the temporary employment agency, in writing on paper or electronically, of the terms and conditions of employment applicable in its undertaking and relating to:

working time
overtime
breaks
rest periods
night work
Annual leave
public holidays
pay
protection of pregnant women and mothers when breastfeeding
protection of children and young people
equal treatment between men and women and any action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.

In the event that the Belgian user wants to employ the posted worker in a country other than Belgium, the user must inform the temporary employment agency of the country to which he wishes to employ the posted worker, prior to the commencement of the employment in this third country.

These information obligations are enforced by provisions in the Social Criminal Code.

Information duty for the government: the single website on applicable conditions

Directive 2018/957 introduced a duty of information for the Member States as regards the working and employment conditions applicable when workers are posted to their territory. This information should be published on a single a freely accessible website. Belgium has implemented this obligation by providing an English page on the website of the Federal public Service of Employment, Work and Social Dialogue, specifically devoted to posting of workers. The Act of 12 June 2020 foresees that the courts and the administration who enforce the application of the applicable employment conditions to posted workers in Belgium need to take into consideration the fact that certain matters are not (duly) mentioned on the website when they decide on the sanction they will impose (this does not mean that they cannot impose a sanction). Therefore, it is important that the website is clear and contains all the necessary information.

The national website can be found here.

Scope of application of the new rules

The new rules enter into force on 30 July 2020. However, the sector of road transport is temporarily excluded, as the EU is still negotiating specific rules for this industry. The exclusion can later be lifted by a Royal Decree. The new rules will also apply to workers from the United Kingdom, as the scope Posting of Workers Act is not limited to the EU (unlike EU Directive 2018/957).