After 12 months, posted workers are entitled to all mandatory Belgian remuneration and employment terms (e.g. guaranteed sick pay) and not only those which attract criminal sanctions if not respected or those provided for in a national or sector CBA which has been declared generally binding and which apply from day one of employment in Belgium. There are exceptions for:
The 12-month period can be extended to 18 months upon notification with reasons before the end of the 12-month period or by 30 July 2020 at the latest (where the posting lasts longer than 12 months but less than 18 months on 30 July 2020) to the Social Inspectorate. The notification must be done either via an electronic form which will be made available on the website of FPS Employment, Labour and Social Dialogue if a Limosa declaration must be made for the relevant employee or via email to the Social Inspectorate if the employee is exempt from a Limosa notification. The notification includes some mandatory information.
If another posted worker performs the same task at the same place, the cumulative duration of the two postings periods will be considered for calculating the 12-month period. ‘The same task at the same place’ will be considered taking into account, inter alia, the nature of the service provided, the work performed and the address of the workplace.
Allowances specific to the posting are considered, as before, to be part of remuneration provided that they are not paid to reimburse expenses actually incurred. If it is not possible to determine which elements cover expenses actually incurred and which elements constitute remuneration, then the entire amount of the allowance will be considered as an expense allowance (and will therefore not be taken into consideration for determining whether the required remuneration is paid).
Allowances or reimbursement of expenditure to cover travel, board and lodging for workers away from home for professional reasons provided for in national or sector CBAs declared generally binding must only be granted to posted workers for travel to and from their regular place of work in Belgium and temporary assignments from this place of work to another place of work.
A new information duty relating to temporary agency workers posted to Belgium from abroad is introduced. The Belgian user company must inform the temporary work agency in writing (paper or electronically) of the essential employment conditions (i.e. working time, overtime, breaks, rest periods, night work, holidays, public holidays, salary, protection of certain categories of employees, equal treatment and discrimination).
A new information duty relating to temporary agency workers and permitted leases of personnel posted from Belgium abroad is introduced. The Belgian user company must inform (the Belgian or foreign) temporary work agency in advance in writing (paper or electronically) if the temporary agency worker will be working in another EEA Member State or in Switzerland. This obligation also applies in the context of other forms of allowed lease of personnel (such as an intra-group leasing) and employer groupings.
Non-compliance with the new information requirements described above can give rise to a level 2 sanction (criminal penalty of EUR 400 to 4,000 or an administrative sanction of EUR 200 to 2,000 to be applied per employee up to a maximum of 100).
A service provider can invoke mitigating circumstances in the context of a breach of the posting rules if the posting conditions are not mentioned on the official website of the FPS Employment, Labour and Social Dialogue.
With the exception of the new information duty relating to temporary agency workers posted to Belgium from abroad, the changes do not yet apply to the road transport sector.
