The revised rules on posted workers have been implemented in Belgian legislation and will enter into force on 30 July 2020. The revisions introduced under the new law brought changes in three areas: remuneration of posted workers; long-term posting; rules on temporary work agencies.
The revised rules on posted workers have been implemented in Belgian legislation and will enter into force on 30 July 2020.
In this GMS Flash Alert, we briefly describe the main changes in Belgium’s legislation. It should be noted that the Directive has consequences for labour law only and not for social security matters. These aspects are regulated by Regulation (EC) No 883/2004 on the coordination of social security systems. Also, taxation and enforcement aspects are governed by other national, bilateral, or European legislation.
The 2018 revision of the EU’s Posting of Workers Directive (“PWD”) introduced changes in three main areas: remuneration of posted workers (including in situations of subcontracting), rules on temporary agency workers, and long-term posting. As a result, employers and their posted employees can expect to see more national legislation transposing these new rules in the context of a posting within Europe.
Employers and their employees, as well as the professional service providers that support them, should stay apprised of developments as their processes and policies may need to be adjusted to help ensure compliance with Belgium’s – and each member state’s – PWD-related rules.
The Posting of Workers Directive (96/71/EC)1 was adopted in 1996 in order to combat unfair competition and to guarantee a minimum level of protection to posted workers. It determines that in case an employee is sent by his employer to carry out a service in another European Union (EU) member state on a temporary basis, the host state’s “hard core” (discussed below) set of labour law provisions applies during the assignment period.
On 28 June 2018, the EU adopted a new directive (2018/957)2 revising the Posted Workers Directive of 1996. The revision introduced changes in three main areas: remuneration of posted workers (including in situations of subcontracting), rules on temporary agency workers, and long-term posting. As a result, more national legislation may apply in the context of a posting within Europe. EU member states are required to amend their posting rules before 30 July 2020.
In Belgium, the revised directive has been implemented by the Act of 12 June 2020, in respect of several positions for workers who are posted3.
The revisions introduced under the new law brought changes in three areas:
The provisions will enter into force on 30 July 2020, without retroactive effect. In the transport sector, the current PWD will continue to apply until the sector-specific European legislation that is currently under negotiation comes into force.4
The Revised PWD introduced the principle “equal pay for equal work,” which implies that the remuneration of assigned employees should be at the same level as the salary of local workers, including the additional salary elements such as bonuses or allowances. Considering that Belgium had already implemented the PWD in a very broad sense, the revision has a minimal impact.
It was already stipulated in Belgian legislation that an employer who temporarily posts its workers to Belgium is required to respect a "hard core" of minimum mandatory Belgian rules concerning working conditions, including rules on working hours, salary conditions, public holidays, etc., which implies that almost the entire Belgian labour law code was applicable to posted employees even before 30 July 2020. The revision brings, however, more clarity around the concept of remuneration. As the Revised PWD requires that member states set out in a transparent way the different elements of remuneration in their territory, the new Belgian legislation specifies that the “hard core” provisions will now include rules on the payment of allowances or reimbursement of expenses covering travel, accommodation, and food expenses for workers who are away from home for professional purposes.
When the effective duration of the posting exceeds 12 months, an employer that is posting its workers to Belgium will be required to respect all the legal and regulatory working and employment conditions in force in Belgium.
This implies that from the 13th month of posting, compliance with working conditions will no longer be limited to the "hard core" set of rules; rather the rules on a guaranteed salary in the event of illness or accident are also applicable. As an exception, the employer of the posted worker is not obliged to comply with the rules relating to concluding and terminating employment contracts, including non-compete clauses and the rules on complementary pensions.
In case the posting already started before 30 July 2020, and will continue beyond this date, the work already performed prior to this date shall be taken into account to determine whether the 12-months’ limit has already been reached and whether the full mandatory Belgian labour law provisions should apply as from 30 July 2020. However, the period before 30 July shall not be retroactively subject to the more extensive package of employment and working conditions in case it already exceeded the 12-months’ limit.
It should also be noted that the employer, via a reasoned notification to the authorities, may temporarily derogate from this rule up to and including the 18th month of posting.
The revised legislation introduces new information obligations for companies established in Belgium using posted employees.
When a Belgian company uses a temporary agency worker posted from another state to Belgium, it must inform the foreign temporary employment agency, in writing or by electronic means, of the working and employment conditions applicable in its company such as conditions relating to working hours, overtime, holidays, measures on well-being, and anti-discrimination.
Furthermore, if a Belgian user company intends to send a temporary agency worker to another member state to carry out work, the user company must give prior notice to the temporary employment agency which member state(s) (other than Belgium) the services will be provided in. This obligation also applies in the context of other forms of permitted lending of personnel and employer groups.
Any breach of these information obligations could result in criminal sanctions.
Action Steps to Consider
As of 30 July 2020, more national legislation may apply in the context of a posting within Europe. The impact of the new Belgian law is relatively limited.
However, the following points are important:
1 See Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services.
2 See Directive (EU) 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. For coverage of the revised directive, see the following issues of GMS Flash Alert: 2020-292 (23 June 2020), 2018-111 (24 August 2018), and 2017-160 (6 November 2017).
4 For coverage of the reform of the transport/haulage sector, see GMS Flash Alert 2020-220 (7 May 2020).
Please note the KPMG International member firm in the United States does not provide immigration or labour law services. However, KPMG Law LLP in Canada can assist clients with U.S. immigration matters.
The information contained in this newsletter was submitted by the KPMG International member firm in Belgium.
To subscribe to GMS Flash Alert, fill out the subscription form.
© 2021 KPMG Tax and Legal Advisers, a Belgian Civil Cooperative Company with Limited Liability (burg. CVBA/SCRL civile) and a member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative (“KPMG International”), a Swiss entity. All rights reserved.
KPMG International Cooperative (“KPMG International”) is a Swiss entity. Member firms of the KPMG network of independent firms are affiliated with KPMG International. KPMG International provides no client services. No member firm has any authority to obligate or bind KPMG International or any other member firm vis-à-vis third parties, nor does KPMG International have any such authority to obligate or bind any member firm.
Flash Alert is an Global Mobility Services publication of KPMG LLPs Washington National Tax practice. The KPMG logo and name are trademarks of KPMG International. KPMG International is a Swiss cooperative that serves as a coordinating entity for a network of independent member firms. KPMG International provides no audit or other client services. Such services are provided solely by member firms in their respective geographic areas. KPMG International and its member firms are legally distinct and separate entities. They are not and nothing contained herein shall be construed to place these entities in the relationship of parents, subsidiaries, agents, partners, or joint venturers. No member firm has any authority (actual, apparent, implied or otherwise) to obligate or bind KPMG International or any member firm in any manner whatsoever. The information contained in herein is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavor to provide accurate and timely information, there can be no guarantee that such information is accurate as of the date it is received or that it will continue to be accurate in the future. No one should act on such information without appropriate professional advice after a thorough examination of the particular situation.