Revised EU Posted Worker Directive Implemented

At a Glance

Belgium has implemented the revised EU Posted Worker Directive and certain changes will take effect July 30, 2020. The implementation will not have a significant impact on employees posted to Belgium since Belgium has broadly implemented the Posted Workers Directive.
Employers will need to take into account the application of almost all Belgian labour laws for long-term postings, with the exception of the rules related to the conclusion and the termination of employment contracts.
Additionally, there is an expected increase in Regional Employment Authorities’ scrutiny of salary compliance for work authorization applications involving posted workers.

The situation

Belgium has implemented the revised EU Posted Worker Directive and certain changes will take effect July 30, 2020. Many of the rules were already applicable in Belgium, and the revision will therefore have limited effect.

A closer look

New rule	Current rule	Impact
Full remuneration requirements. One of the key changes of the revised Posted Worker Directive will be to apply the host country’s remuneration requirements to posted workers (except extra-legal pension payments), where currently, remuneration must be merely the minimum of the host country.	Belgium already required equal remuneration for posted workers according to the relevant binding collective labour agreements of the sector.	None
Host employment terms for long-term posted workers. Postings over 12 months (or 18 months if the host applies for an extension) will be subject to full host labour law provisions, including guaranteed sick pay. This excludes rules regarding the conclusion and termination of employment contracts.	A company sending employees to Belgium needs to ensure compliance with Belgian employment conditions arising from criminally punishable provisions starting on the first day of the posting.	Most Belgian labour law provisions subject violators to criminal punishment. Nevertheless, companies sending employees to Belgium to perform work for 12 months or more (extendable to 18 months), will need to comply with additional Belgian labour law provisions, such as guaranteed sick pay, which may have cost impacts.
Consecutive work periods. Under the new policy, periods of work by workers consecutively posted to the same position are counted cumulatively to calculate the 12-month threshold after which full host employment conditions apply.	This rule does not exist in Belgium.	Employers will need to keep track of periods of work and review employment terms if the worker is consecutively posted to carry out the same work at the same place.

Background

Posted worker definition. A posted worker is one that carries out business or work activities temporarily or partially in Belgium while usually working abroad.
EU Posted Worker Directive history. The main objective of the EU Posted Workers Directive is to improve employment conditions between posted and host country workers by equalizing pay, regulating working hours and paid leave rules. On July 30, 2018, the EU adopted more strict compliance rules for posted workers which EU Member States have to implement into their national legislation by July 30, 2020.
How Fragomen can help. Contact your immigration professional for assistance with applying the terms of the new rules in Belgium.

Impact for employers

Actions required. Employers should review the employment terms of workers posted to Belgium, in particular regarding the period of posting, their remuneration and other payments and benefits.
Fine for noncompliance. Employers who do not comply with these requirements may face a criminal fine between EUR 400 and EUR 4,000 and administrative fines between EUR 200 and EUR 2,000. These fines can be multiplied by 12 for cumulative violations. Employers who do not comply with the new requirements may however benefit from mitigating circumstances.

Looking ahead

Despite the minor impact of the implementation of the revised directive on the salary conditions for posted workers in Belgium, it may have a cost impact for long-term postings.

Employers should be aware that the Regional Employment Authorities are expected to increase scrutiny of salary compliance for work authorization applications involving posted workers.

Fragomen will report on related updates.

This alert is for informational purposes only. If you have any questions, please contact the global immigration professional with whom you work at Fragomen or send an email to [email protected].

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