Working conditions to be respected in case of posting to Belgium

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    General principles: Belgian Act of 5 March 2002 on the posting of workers.    

    General scheme

    Applicable working conditions: principle

    Employers who post their workers to Belgium are obliged to respect - for the work performed there - the Belgian working conditions (including pay and employment conditions) which are laid down by legal and regulatory provisions (Royal Decrees) sanctioned under criminal law and by contractual provisions made compulsory by Royal Decree (i.e. collective labour agreements sanctioned under criminal law).

    As they are punishable under criminal law, these provisions are of public order: they are essential provisions that ensure the protection of workers' rights.

    These provisions concern in particular:

     Exceptions to the application of Belgian working conditions 

    An employer who posts workers to Belgium is exempted from applying:  

    • contributions to Belgian supplementary occupational pension schemes.
    • in case of certain initial assembly and/or initial installation work on goods, where the duration of such work does not exceed eight days and does not constitute activities in the field of construction, the pay conditions and the conditions relating to the minimum length of paid annual leave.

    Moreover, the above-mentioned principle (see above point 1) is without prejudice to the application of any working, remuneration and employment conditions of the Country of origin that are more favourable for the posted worker.

    Ex.: shorter working time or higher remuneration, in application of the labour law of the State of origin (= sending State), compared to Belgian working conditions: these working conditions of the State of origin are more favourable to the posted worker and (by way of exception) therefore continue to apply.

    Special scheme applicable from 30 July 2020 where posting actually exceeds 12 months

    From 30 July 2020, in case of postings the duration of which actually exceeds 12 months, a special scheme determines the Belgian working conditions (including pay and employment conditions) which must be complied with in the case of posting in Belgium in respect of the work performed by those workers after the first 12 months and provided also that those work performances take place from 30 July 2020.

    On the other hand, that special scheme does not, therefore, determine the Belgian working conditions applicable in respect of the work performed during the first 12 months of posting, nor the Belgian working conditions applicable to the work performed before 30 July 2020.
    With regard to such work, the general scheme (see above : "General scheme") remains fully applicable.

    Important remarks concerning the calculation of the period of posting

    Posting starting before 30 July 2020 but still on-going on or after that date

    Work performed by the posted worker before 30 July 2020 will be taken into account for the purpose of determining whether the duration of the posting actually exceeds twelve months and, consequently, whether or not the special scheme is applicable to work performed from that date of 30 July 2020.

    On the other hand, the special scheme will never determine the Belgian working conditions applicable to work performed by the posted worker before 30 July 2020.
    Before 30 July, the general scheme shall always and only apply (see above I "General Scheme").

    Example of posting having started before 30 July 2020.

    Replacement of a posted worker by another posted worker performing the same task in the same place.

    In case of a "chain" of replacements involving "the same task in the same place" carried out by posted workers, for the purposes of determining whether the duration of the posting of the replacement worker exceeds 12 months, such duration shall be calculated by adding together the duration of his own posting and the duration or durations of the postings of each replaced worker who preceded him in the "chain" of replacements and who carried out the same task as the replacement worker in the same place.

    For the purpose of determining whether the posted worker actually performs the same task in the same place as the posted worker whom he replaces, account shall be taken, among other things, of the nature of the service to be provided, the work to be performed and the address or addresses of the place of work.

    However, such a measure shall apply only to the work performed by both replacement and replaced workers from 30 July 2020.

    Applicable Belgian working conditions: principle

    Where the actual period of posting to Belgium exceeds 12 months, the employer shall, in respect of work performed after the 12 months, from 30 July 2020, comply with the Belgian working, pay and employment conditions laid down by:

    • legal and regulatory provisions (Royal Decrees)
    • contractual provisions made compulsory by Royal Decree in accordance with the Act of 5 December 1968 on collective labour agreements and joint committees (i.e. collective labour agreements that are sanctioned under criminal law)

    Therefore, the work that falls under the Belgian working conditions applicable under such a special scheme which satisfies two cumulative conditions: first, must be performed after the expiry of the first period of 12 months of posting and second, must be performed from 30 July 2020.

    In other words, the working conditions applicable when the special scheme is applied are the following :

    On the one hand, the Belgian working conditions provided for under the general scheme (see above point "General scheme").

    Consequently, the working conditions, which must be applied during the first twelve months of the posting, also apply after those twelve months. 

    Such working conditions are provided for by provisions which are sanctioned under criminal law and concern in particular:

    On the other hand, in addition to the above-mentioned provisions, a set of additional Belgian working conditions.

    Such additional Belgian working conditions are those provided for by the legal and regulatory provisions that are not sanctioned under criminal law.
    They concern, in particular, the rights and obligations of the worker and the employer and the suspension of the execution of the employment contract.

    Exceptions to the application of Belgian working conditions

    Where the duration of the posting actually exceeds 12 months, the employer who posts workers is exempted in certain cases from applying certain working conditions

    Exception concerning certain Belgian legal, regulatory and conventional provisions

    The foreign employer must never apply the provisions relating to:

    • the procedures, formalities and conditions governing the conclusion and termination of the employment contract, including the non-competition clause, and
    • the contributions to supplementary occupational pension schemes.

    Temporary exception in the case of a motivated notification

    As already explained above, if the posting lasts more than 12 months, the employer must, in principle, as from 30 July 2020, apply additional working, pay and employment conditions.

    However, the law provides for a temporary exception to this obligation to apply additional working conditions.

    As from 30 July 2020, the employer may request a derogation for an additional six-month period by means of a motivated notification.

    This additional period always begins on the first day of the 13th month of posting.

    In other words, if the employer submits a motivated notification, s/he will be exempted, after the first 12 months of posting, from the obligation to apply additional working conditions for an additional six-month period.

    During this six-month period, the employer must continue to apply the working conditions set out in the general scheme (see above "General scheme", as during the first 12 months of posting.

    In order to benefit from this temporary exception, the employer must submit the aforementioned motivated notification to the Federal Public Service Employment, Labour and Social Dialogue.

    This motivated notification must be submitted within the following deadlines:

    • before the end of the 12th month of employment of the posted worker, or
    • 30 July 2020, if the posting already exceeds 12 months on 30 July 2020 but does not reach 18 months on that day.
       

    In this second case, the employer concerned can only benefit from this temporary exception from the time of notification and until the posting has reached 18 months.

    For more information about the motivated notification, please see the following page.

    Temporary exception with regard to activities in the field of road transport

    The additional working conditions applicable on the basis of the special scheme in case of posting whose duration actually exceeds 12 months  are temporarily not applicable to activities in the field of road transport.

    Activities in the field of road transport are those carried out on behalf of third parties and which fall within the competence of the Joint Committee on Transport and Logistics (see the following PDF documents in that regard : in French language (PDF, 46.84 KB)  and in Dutch language (PDF, 37.56 KB)).

    They concern the transport of goods and the transport of persons.

    Such additional working conditions will only be applicable to activities in the field of road transport once a Royal Decree has been adopted fixing the date of their application.

    Before the adoption of this Royal Decree, the Belgian working conditions applicable to activities in the field of road transport therefore remain the Belgian working conditions sanctioned under criminal law applicable on the basis of the general scheme (see above "General scheme").

    Exception in case of more favourable conditions in the State of origin  

    Moreover, the above-mentioned principle (see above point "Applicable Belgian working conditions: principle") is without prejudice to the application of any working, remuneration and employment conditions of the Country of origin that are more favourable for the posted worker.

    Ex.: shorter working time or higher remuneration, in application of the labour law of the State of origin (= sending State), compared to Belgian working conditions: these working conditions of the State of origin are more favourable to the posted worker and (by way of exception) therefore continue to apply.

    Possible exception based on a motivated notification where the posting exceeds 12 months (applicable as from 30 July 2020)

    As already explained above (see “Special scheme applicable from 30 July 2020 where posting actually exceeds 12 months”), if the posting lasts more than 12 months, the employer must, in principle, as from 30 July 2020, apply additional working, pay and employment conditions.

    However, the law provides for a temporary exception to this obligation to apply additional working conditions.

    As from 30 July 2020, the employer may request a derogation for an additional six-month period by means of a motivated notification.

    This additional period always begins on the first day of the 13th month of posting.

    In other words, if the employer submits a motivated notification, s/he will be exempted, after the first 12 months of posting, from the obligation to apply additional working conditions for an additional six-month period.

    During this six-month period, the employer must continue to apply the working conditions set out in the general scheme (see above "General scheme"), as during the first 12 months of posting.

    In order to benefit from this temporary exception, the employer must submit the aforementioned motivated notification to the Federal Public Service Employment, Labour and Social Dialogue.

    This motivated notification must be submitted within the following deadlines:

    • before the end of the 12th month of employment of the posted worker, or
    • 30 July 2020, if the posting already exceeds 12 months on 30 July 2020 but does not reach 18 months on that day.
       

    In this second case, the employer concerned can only benefit from this temporary exception from the time of notification and until the posting has reached 18 months.


    For more information about the motivated notification, please see the following page.