General scheme of joint and several liability for unpaid wages - general scheme

Concept of joint and several liability for unpaid wages

When an employer does not pay his/her worker (part or all of) his/her wage, the Law of 12 April 1965 on the protection of workers’ wages and salaries provides joint and several liability schemes which enable the worker, under certain conditions, to alternatively obtain the payment of his/her wage from third parties known as "jointly and severally liable debtors".

First of all, the Law of 12 April 1965 provides a general scheme of joint and several liability for unpaid wages (hereinafter referred to as "general scheme").
This general scheme is described below.
 

Wage liabilities concerned 

1. It must always be a wage due from the employer to the worker, but which has not been paid. 

2. The debtors are jointly and severally liable during a period which is determined by the Labour Inspectorate in the notification which it sends to these jointly and severally liable debtors.

Such a period starts after the expiry of 14 working days after notification by the Labour Inspectorate and may not exceed one year. 

3. Joint and several liability for unpaid wages applies only to the wages that became due during the period of joint and several liability.
It therefore only applies to future unpaid wages (and not to unpaid wages due prior to the period of joint and several liability).  

4. Lastly, joint and several liability does not apply to the allowances to which the worker is entitled following the termination of his/her employment contract (eg notice pay).

Scope and procedure 

1. The general scheme can only apply to activities determined by Royal decree.  

2. However, it is important to note that even when these activities are determined by Royal decree, such a general scheme will not apply when the two other special joint and several liability schemes set out in the same Law of 12 April 1965 are applicable.

• Thus, it is necessary to first make a distinction according to whether the activities concerned are construction-related or not.
   
  • When the activities concerned are contruction-related, the general scheme will in fact apply only to the indirect subcontracting relationship (irrespective of whether there is a chain of subcontractors or not).
    
    However, the general scheme will not be applicable to the direct contractual relationship between the jointly and severally liable debtor and the contractor-employer of the workers concerned.
    As far as such a direct contractual relationship is concerned, joint and several liability for unpaid wages can only be incurred through the special scheme of the direct contractor in the construction industry. 
     
  • When the activities concerned are not construction-related, the general scheme will, in principle, be fully applicable (regarding both the direct contractual relationship and the indirect subcontracting relationship, with or without chain of subcontractors). 

Moreover, it should also be noted that the general scheme will not apply either when the worker whose wage has not been paid is an illegally staying third-country national.
In such a case, the possible joint and several liability is in fact exclusively governed by the special joint and several liability scheme for the unpaid wages of illegally staying third-country nationals.
More information regarding this special joint and several liability scheme can be found by consulting the following webpage.