Jointly and severally liable debtors concerned and procedure in the case of construction-related activities - General scheme

Limitation to the indirect subcontracting relationship 

When the activities concerned by Royal decree are construction-related, the general scheme of joint and several liability (hereafter referred to as the "general scheme") will apply only to the indirect subcontracting relationship.
 
However, the general scheme will not be applicable to the direct contractual relationship between the client, the contractor or the subcontractor and their contractor-employer. 
 
Indeed, in such a case, the joint and several liability of the direct contractor of this client, contractor or subcontractor is governed exclusively by the direct contractor's special scheme for construction-related activities. 

Jointly and severally liable debtors 

The client, contractor or subcontractor who is informed by written notification from the Inspectorate that the subcontractor intervening indirectly after him/her has seriously failed to pay his/her workers the wage to which they are entitled within the relevant time frame is jointly and severally liable for paying the wage to the workers of the subcontractor covered by the notification when this client, contractor or, as the case may be, subcontractor is summoned to do so by registered letter (see below).

On the basis of its discretionary power, the Inspectorate determines which jointly and severally liable debtors it informs in writing.

The debtors are jointly and severally liable during a period which is determined by the Labour Inspectorate in the notification it sends to these debtors.
Such a period starts after the expiry of 14 working days after notification by the Labour Inspectorate and may not exceed one year.

However, this general scheme is not applicable to the client-natural person who has the aforementioned activities carried out for exclusively private purposes (eg an individual who has his/her house built).  

Procedure (summons) 

Two types of summons are possible.

Summons by the worker 

1. When the jointly and severally liable debtor has been directly summoned by one of the workers concerned, the joint and several liability concerns the unpaid part of the wage due (which became due during the period of joint and several liability) by the employer (the subcontractor concerned by the notification).
   
   The precise amount of the wage to which the joint and several liability applies therefore depends on the provisions of the summons.
    
2. However, the jointly and severally liable debtor may limit the amount of the wage he/she owes to the work performed for his/her benefit. 

• The jointly and severally liable debtor has the possibility to prove that the working time that the worker concerned performed within the framework of the activities that this jointly and severally liable debtor commissioned, through (indirect) subcontractors, is limited to a certain number of hours.
  In such a case, the joint and several liability only concerns the unpaid part of the wage due (which became due during the period of joint and several liability) corresponding to the aforementioned services.
   
• Moreover and a fortiori, the possible jointly and severally liable debtor shall not be jointly and severally liable if he/she proves that the worker concerned has not provided any service within the framework of the activities he/she commissioned.
   

Summons by the Inspectorate 

1. When the jointly and severally liable debtor has been directly summoned by the Inspectorate, the joint and several liability only concerns the unpaid part of the wage due (which became due during the period of joint and several liability) which corresponds to the work performed within the framework of the activities that this jointly and severally liable debtor commissioned, through (indirect) subcontractors.
   
   The precise amount of the wage to which the joint and several liability applies therefore depends on the provisions of the summons. 
    
2. However, if the services performed by the workers concerned within the framework of the activities that the jointly and severally liable debtor commissioned through subcontractors cannot be determined, then the joint and several liability concerns the payment to each worker concerned appearing on a list sent by the Inspectorate at the same time as a notice to pay a percentage of a minimum wage fixed by Royal decree.
   
   This percentage corresponds to the proportion of the activities carried out by the employer concerned in the context of the works that the jointly and severally liable debtor commissioned through subcontractors in the turnover of the employer concerned, during a reference period determined by Royal decree.   

Diagram 

For an overview of possible jointly and severally liable debtors, on the basis of the general scheme in the case of construction-related activities, please see this diagram (PDF, 283.54 KB).   

Compulsory display   

The client, contractor or subcontractor (jointly and severally liable debtors) to whom the notification is sent by the Labour Inspectorate must display a copy of the notification received at each place where the activities are carried out by the workers of the employer concerned by this notification.

The subcontractor concerned by the notification (the employer who has seriously failed to pay his/her workers the wage to which they are entitled within the relevant time frame) also receives a copy of the notification from the Labour Inspectorate and shall display it at each place where he/she employs his/her workers.