Concept and formalities
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What is meant by posting of workers as defined by labour law ?
An undertaking established outside Belgium may post its workers in such a country, i.e. temporarily employing these workers in Belgium.
During the period of such a posting, the employer must comply with certain Belgian working conditions.
Posting means the situation of a worker who temporarily carries out work in Belgium and who:
- either habitually works in the territory of one or more countries other than Belgium
- or was recruited in a country other than Belgium
- A German worker who is a computer expert is sent by his German undertaking to carry out analysis at a Belgian client of his employer for a period of five months;
- A Luxemburg worker is recruited by a French temp agency to work in Belgium for three months;
- A French parent company sends one of its workers to Belgium to work there for the company's Belgian branch for two years.
However, if a foreign undertaking recruits a worker in Belgium to work there, irrespective of his nationality, this is not a case of posting as defined by labour law.
Example: A Dutch company takes on a sales representative in Belgium to try to recruit customers in Belgium.
In such an example, a conflict-of-laws can exist between, on the one hand, the law of the country where the work is actually carried out, in other words Belgian labour law and, on the other hand, for instance, the law of the country that the parties to the employment contract would have chosen, for instance the Dutch labour law.
In the aforementioned conflict-of-laws, the law to be applied to the employment contract have to be determined on basis of the private international law rules it is to say :
- as regards the employment contracts concluded at the latest by 17 December 2009, the Convention of Rome;
- as regards the employment contracts concluded from 18 December 2009, the Regulation (Rome I).
Exemption from the obligation to deliver particular social records
Motivated notification in case of posting exceeding 12 months (applicable as from 30 July 2020)
Where the period of posting actually exceeds twelve months, the employer of the posted worker may be exempted, for an additional period of six months, from the obligation to apply the additional Belgian working conditions which must be complied with in accordance with the special scheme normally applicable in that case.
To be exempted, the employer must send a motivated notification to the Federal Public Service Employment, Labour and Social Dialogue.
Such a motivated notification must be sent, as appropriate, within the following time limits:
- before the end of the twelfth month of employment of the posted worker, or
- on 30 July 2020, in case of posting already exceeding 12 months on 30 July 2020 but not reaching 18 months on that date.
For more information on this motivated notification, please see the following page.
Moreover, for more information on the working conditions to be applied in case of posting in Belgium, please see the following page.