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.

Main principle remains unchanged

Immediate application of hardcore Belgian employment legislation

Employers which post workers to Belgium must comply with:

  • the labour, salary and employment conditions provided for in the Belgian statutory provisions that are criminally enforced; and
  • collective bargaining agreements that are declared generally binding by royal decree.

Foreign employers which post workers to Belgium must immediately comply with the following 'first layer' legal acts and their implementing royal decrees:

  • the Labour Act of 16 March 1971, which includes stringent provisions on working time;
  • the Public Holidays Act of 4 January 1974;
  • the Coordinated Vacation Act of 28 June 1971;
  • the Act Relating to Temporary Employment, Interim Work and Putting Employees at the Disposal of 24 July 1987;
  • the Act of 4 August 1996 Relating to the Wellbeing of Employees;
  • the Salary Protection Act of 12 April 1965;
  • the Anti-racism Act of 30 July 1981;
  • the various anti-discrimination acts of 10 May 2007; and
  • national and sector-level collective bargaining agreements that are declared generally binding.

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).

What's new?

'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:

  • The Act of 12 June 2020 will take effect on 30 July 2020 and will immediately affect pending posting periods. For example, if a posting period on 30 July 2020 exists for 11 months and continues to be in force, the second layer already becomes effective on 1 September 2020.
  • If several posted workers replace each other to perform the same work at the same location, the total duration of activity of such a chain of posted workers will be taken into account to determine when the 12-month period is reached. This clarification was added to avoid employers avoiding the application of the second layer by replacing posted workers with others before the expiry of the 12-month period.
  • The 12-month period can be extended by another six-month period provided that the posting employer sends a reasoned notification to the designated officers.

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.