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If a worker is employed in Belgium by an employer established in another country, two situations have to be distinguished :
- An employer whose registered office is established outside Belgian territory temporarily sends out workers to Belgium to perform work there : posting of workers
- the aforementioned employer permanently employs in Belgium his worker.
Ex. : 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 16 December 2009, the Convention of Rome of 19 June 1980 on the law applicable to contractual obligations;
- as regards the employment contracts concluded from 17 December 2009, the Regulation (EC) n° 593/2008 of 17 June 2008 on the law applicable to contractual obligations (Rome I).