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29 July 2020
The Act of 12 June 2020 implemented the EU Posted Workers Directive (2018/957/EU) in Belgium by introducing, among other things, adjustments to the Act of 5 March 2002 Relating to Labour, Salary and Employment Conditions When Posting Workers to Belgium (the Posting Act). The Act of 12 June 2020 will come into effect on 30 July 2020. This article summarises the key changes introduced by the act and its impact on employers.
Immediate application of hardcore Belgian employment legislation
Employers which post workers to Belgium must comply with:
Foreign employers which post workers to Belgium must immediately comply with the following 'first layer' legal acts and their implementing royal decrees:
These labour, salary and employment conditions apply from the first day of a worker's posting on Belgian territory and overrule any choice of law clause included in an employment contract that provides for less favourable conditions.
This principle was already set out in the previous version of the Posting Act and, besides some textual changes, remains fully in effect.
Supplementary pension schemes are out of scope
The Act of 12 June 2020 clarifies that company or sector-level extra-legal pension schemes, even if captured in a collective bargaining agreement that is declared generally binding, are excluded from the hardcore Belgian employment legislation.
Allowances or reimbursement of expenditure to cover travel, board and lodging expenses
Foreign employers must comply with sector-level collective bargaining agreements that are declared generally binding, while providing for certain allowances or reimbursement formulas to cover travel, board and lodging expenses for posted workers' travel throughout Belgium (eg, where a posted worker must travel from a workplace in Brussels to a workplace in Antwerp) or abroad (eg, where a posted worker must travel from a workplace in Antwerp to a workplace in Rotterdam).
'Second layer' Belgian employment provisions apply when posting period exceeds 12 months
Once a posting period exceeds 12 months, employers must comply with all statutory Belgian labour, salary and employment provisions even if these are not criminally enforced, as well as any collective bargaining agreements that are declared generally binding by royal decree.
The practical impact of this new rule for foreign employers which post workers to Belgium will be limited as most Belgian employment legislation is criminally enforced and hence already falls under the first layer, which immediately applies (and which was already the case prior to the Act of 12 June 2020's entry into force). An example of such a second-layer rule is posted workers' entitlement to guaranteed salary in case of sickness.
Termination rules are explicitly excluded in this second layer. Consequently, posted workers will not benefit from the Belgian termination rules based on the Posting Act if a posting period exceeds 12 months (however, the Belgian termination rules may still become applicable based on the EU Rome I Regulation (593/2008)). The same applies for the procedures, formalities and conditions regarding the conclusion (and termination) of employment contracts, including the provisions regarding a post-termination non-compete undertaking. For example, the restrictive Belgian rules on fixed-term employment contracts and their renewal do not automatically apply if the posting exceeds 12 months.
Employers in the transport sector are temporarily excluded from this second-layer principle.
The following clarifications are useful for employers:
Allowances that cannot directly be linked to posting qualify as cost reimbursements
Allowances specific to posting often serve several purposes. To the extent that their purpose is the reimbursement of expenditure incurred on account of the posting (eg, travel, board or lodging expenditure), they should not be considered part of the worker's remuneration.
If there is any uncertainty as to whether such allowances are part of a posted worker's remuneration, such allowances will be considered to be paid as a reimbursement of expenditure and will not be taken into account to verify whether the Belgian salary conditions are met.
For further information on this topic please contact Emma Van Caenegem or Esther Soetens at ALTIUS by telephone (+32 2 426 1414) or email (email@example.com or firstname.lastname@example.org). The ALTIUS website can be accessed at www.altius.com.
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