Special joint and several liability scheme for pay in the case of employment of illegally staying third-country nationals

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    Concept of joint and several liability for pay

    If an employer fails (wholly or partly) to pay the wages owed to one of its workers, the Law of 12 April 1965 on the protection of workers’ pay provides for joint and several liability schemes for pay, which under certain conditions enable the worker, on a secondary basis, to seek payment of unpaid wages from certain third parties referred to as jointly and severally liable parties.

    The Law of 12 April 1965 (consolidated versions available in French and Dutch) introduces a special joint and several liability scheme for the payment of illegally staying third-country nationals.

    This scheme corresponds to the transposition into Belgian law, as regards unpaid wages, of Article 8 of Directive 2009/52/EC of the European Parliament and of the Council of 18 June 2009 providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals.

    Scope

    1. This special scheme always applies in the case of employment of illegally staying third-country nationals, to the exclusion of any other joint and several liability scheme for pay provided for by the Law of 12 April 1965 on the protection of workers’ pay.

    In this regard, an illegally staying third-country national is anyone:

    • who is not an EU citizen within the meaning of Article 17(1) of the Treaty establishing the European Community, and
       
    • who is not a person enjoying the right of free movement, as defined in Article 2(5) of the Schengen Borders Code, and
       
    • who is in Belgium but does not meet the conditions to enter or stay in the country.

    2. This joint and several liability scheme for pay applies to all forms of work.

    3. The special scheme applies both if there is a chain of subcontractors and if no such chain exists.

    Unpaid wages concerned

    An illegally staying person is entitled to receive payment for any work done under the authority of an employer.

    The payment must always be for wages owed by the employer to the worker that have not been paid.

    However, joint and several liability does not apply to allowances to which workers are entitled following the termination of their employment contract (e.g. compensation in lieu of notice).

    Parties with joint and several liability

    A distinction should be made between direct and indirect subcontracting relationships (see diagram). The initial contractor also has joint and several liability.

    Direct subcontracting

    1. The contractor, if there is no chain of subcontractors, and the intermediate contractor, if such a chain does exist, are jointly and severally liable for payment of any pay still owed by their direct subcontractor.

    In that case, the joint and several liability concerns all unpaid wages.

    2. However, the aforementioned contractor or intermediate contractor are not jointly and severally liable if they are in possession of a written declaration in which their direct subcontractor certifies that it is not employing any illegally staying third-country nationals. That written declaration does not necessarily have to be a specific document; it can also be a clause in a written contract in which the subcontractor, as an employer, declares that it is not employing and will not employ an illegally staying third-country national.

    3. However, the aforementioned contractor or intermediate contractor in possession of such a declaration will become jointly and severally liable again as soon as it becomes aware that its direct subcontractor is employing one or more illegally staying third-country nationals.

    • That knowledge is, for example, proven when the Labour Inspectorate warns the jointly and severally liable parties, by means of a notification, that their direct subcontractor is employing one or more illegally staying third-country nationals. Such knowledge may also be proven by any other legal means.
       
    • In that case, the contractor or intermediate contractor is jointly and severally liable only for future unpaid wages: it is jointly and severally liable for the payment of any pay still owed (by its direct subcontractor) for work done under the contract with the subcontractor concerned, from the moment when it became aware that an illegally staying third-country national was being employed.

    Indirect subcontracting

    1. This only concerns situations where there is a chain of subcontractors.

    2. In a chain of this kind, main contractors and intermediate contractors who become aware of the employment by their indirect subcontractor of one or more illegally staying third-country nationals are jointly and severally liable for payment of the pay still owed by their indirect subcontractor for work done for their benefit from the moment when they became aware of the aforementioned employment.

    • The concept of ‘indirect subcontractor’ in this case means a subcontractor who employs illegally staying third-country nationals but who has no contractual relationship with the aforementioned intermediate contractor.
       
    • This joint and several liability therefore concerns future unpaid wages.
       
    • Concerning proof of this knowledge, reference is made to the comments for direct subcontracting.

    Initial contractor

    1. The contractor is jointly and severally liable, both in the context of a subcontracting relationship and without one.

    2. Any initial contractor that is aware that its main contractor (no subcontracting relationship) or subcontractor working directly or indirectly for its main contractor (subcontracting relationship exists) is employing one or more illegally staying third-country nationals is jointly and severally liable for payment of any pay still owed by the aforementioned contractor or subcontractors for any work done from the moment it (the initial contractor) became aware of the aforementioned employment, provided that the work was done for the benefit of that initial contractor.

    • This joint and several liability therefore concerns only future unpaid wages.
       
    • Concerning proof of this knowledge, reference is made to the comments for direct subcontracting.

    3. The joint and several liability scheme is not applicable to a natural person who is an initial contractor having the work done for solely private purposes (e.g. a private individual having a house built).

    Diagram

    For an overview of the parties potentially jointly and severally liable, please see this diagram (PDF, 275.64 KB).

    Display obligation

    Where the Labour Inspectorate warns a jointly and severally liable party, by means of a notification, of the employment of one or more illegally staying third-country nationals, it shall also send a copy of that notification to the contractor or subcontractor concerned by the employment (in other words, the ‘reported’ employer who employed the illegally staying third-country nationals).
    The contractor or subcontractor concerned must then display the notification at every location where the Labour Inspectorate has found it to be employing illegally staying third-country nationals.

    If the aforementioned employer fails to display the notification in this way, the jointly and severally liable party to whom the notification was sent by the Labour Inspectorate must itself take responsibility for displaying the notification received at the location(s) in question.

    Right of certain third parties to take legal action

    Organisations representing workers and organisations representing employers and the Interfederal Centre for Equal Opportunities (UNIA) and the fight against racism and discrimination may take legal action in disputes regarding the application of the special joint and several liability scheme described above to defend the rights of an illegally staying third-country national in Belgium who is or was employed there.

    That right of action may also be extended to any public interest establishment and any association determined by royal decree.

    The aforementioned organisations, public interest establishments and associations may take legal action without permission from the illegally staying third-country national.

    Legal action by those organisations, public interest establishments and associations shall not affect the right of an illegally staying third-country national to take legal action personally, to join the legal action or to intervene in the case.