Inbound EU temporarily “posted workers” treated on (quasi) equal footing with “local” workers after twelve months, concerning at present some 178,000 workers

A "posted worker" is an employee who is sent by his employer to carry out a service in another EU Member State on a temporary basis, in the context of a contract of services, an intra-group posting or a hiring out through a temporary agency. Posted workers are different from EU mobile workers as they remain only temporarily in the host Member State and do not integrate its labour market.

As a result of the revised Posting of Workers Directive (adopted on 28 June 2018), the Member States of the European Union are obliged to adapt their “posting” rules by 30 July 2020. On Thursday 28 May 2020, the Belgian Act containing various provisions on the posting of workers was adopted by the Belgian parliament. The text is now final and will be published in the Belgian Official Gazette.

The purpose of the revisions introduced by the Posting of Workers Directive of 28 June 2018 (modifying directive 96/71/EC), which are obliging the Member States of the European Union to adapt their posting rules, is to maintain a fair balance between the freedom to provide services and the principles of fair competition on the one hand and the rights of posted workers, on the other hand. The revised provisions aim therefore to strengthen certain principles that are already being provided for in the initial Posting of Workers Directive (96/71/EC) regarding wage and employment conditions. In addition, they also add new provisions on information on these wage and employment conditions, and the actual place of “posting”.

The Belgian Act containing various provisions on the posting of workers (still to be published) will introduce the above principles and rules into Belgian labour law, through the amendment of the Workers Act of 5 March 2002. The main amendments will be as follows (the road transport sector is temporary still excluded):

  • Belgian employment conditions apply after 12 months of occupation in Belgium - As from an occupation of 12 months in Belgium, the posted employees will be entitled to all Belgian statutory pay and employment conditions (right to guaranteed pay in case of illness, etc.), whereas during the first 12 months, the employer is not obliged to comply with all these conditions but only with “the essential conditions” (i.e. rules on working hours, pay, public holidays, but excluding e.g. the right to guaranteed salary in case of illness). Provisions regarding the conclusion and termination of the employment contract and the supplementary pension schemes are however out of scope and will remain not applicable to posted employees, even after 12 months of occupation in Belgium;
  • Broadening of the “essential conditions” from the first day of posting  - The “essential conditions” will also include the provisions regarding allowances for travel, meal and cost of living allowances for workers who are away from home for professional purposes, and may be granted to posted workers (as from the first 12 months of occupation in Belgium) for commuting to and from their usual place of work in Belgium and for temporary commuting from that usual place of work to another place of work (in Belgium as well);
  • Definition of “pay” - The allowances directly linked to the posting are, as before, regarded as part of the pay to the extent that they are not paid to cover actual costs. If it is not possible to determine which elements cover actual costs and which elements constitute “pay”, the full amount of the allowance is considered as reimbursement of costs.

In addition, another Belgian Act (of 24 July 1987 on temporary work, temporary agency work and the hiring-out of workers) will also be amended as follows:

  • New information obligation in case of temporary work provided via a temporary employment agency - If a temporary worker is posted to Belgium from another country, the Belgian user will now be obliged to inform the temporary employment agency in writing (paper or electronically) about the “essential working conditions” of the occupation (i.e. working time, overtime, breaks, rest periods, night work, holidays, public holidays, pay, protection of a number of categories of workers, equal treatment and discrimination). In addition, the Belgian user must also inform the (Belgian or foreign) temporary employment agency in advance in writing if the temporary worker will be working in another EEA Member State or Switzerland (but not yet temporarily in the road transport sector). This obligation also applies in the context of other forms of permitted posting of personnel (such as intra-group posting) and employer groupings.
  • Sanction - Non-compliance with the above-mentioned information obligations may be sanctioned by a criminal fine between € 400 and € 4,000 (per employee) and/or an administrative fine between € 200 and € 2,000 (per employee), corresponding to a level 2 sanction according to the Belgian Social Criminal Code.

These new rules will enter into force on 30 July 2020 without retroactive effect and will impact some 178,000 workers who are presently posted in Belgium (latest available data – 2016).