Skip to content As a result of irresponsible behaviour of certain companies posting workers in the framework of transnational provision of services, and respectively of certain recipients of services, EU Member States are toughening sanctions for failure to comply.
Economic exploitation
One of the significant issues targeted is the economic exploitation (i.e., labour abuses to the detriment of posted workers).
As regards the concept of economic exploitation, Member States are looking to bridge the legal gap between labour abuses in the meaning of existing national law provisions, and trafficking in human beings (defined as forced labour or services).
To that end, amendments are focused on aggravated economic exploitation, the aggravating factor being introduced mainly in relation to:
- substantial underpayment;
- non-declaration of working hours;
- unsafe working conditions;
- poor housing.
Failure to pay remuneration
In Belgium, the Social Criminal Code was amended to toughen inter alia the sanctions for failure to pay the remuneration due to workers.
Under certain circumstances, the failure to pay the minimum remuneration due in accordance with the applicable collective agreement is sanctioned with imprisonment of six months to three years, and a criminal fine of €4,800 to €56,000, or with one of these penalties only, or with an administrative fine of €2,400 to €28,000.
Fines are multiplied by the number of workers concerned and capped to maximum amount multiplied by 100.
The failure to pay the full remuneration due in accordance with the applicable collective agreement (i.e., including all due supplements) is sanctioned with criminal or administrative fines as well (multiplied by the number of workers concerned, and capped to maximum amount multiplied by 100).
As regards criminal fines applicable to offences committed by legal persons, the Social Criminal Code lays down a specific way of calculation.
We believe that most of the Member States will amend their national law to introduce/toughen sanctions for aggravated economic exploitation.
Determining the remuneration due to posted workers
In what the payment of remuneration is concerned, a “sufficient remuneration” paid in agreement with the worker, might trigger substantial underpayment from the perspective of the host Member State law.
The determination of the remuneration due to posted workers might represent a laborious exercise, that implies the following steps:
- determination of the applicable collective agreement;
- assessment of the applicable collective agreement considering inter alia the foreseeable duration of the assignment, work pattern and foreseeable conditions of work, the relevance of the concept of long-term posting and replacement condition;
- assessment of relevant applicable statutory provisions;
- application of the principle of favourability (where relevant).
Determining the remuneration due to posted temporary workers
Temporary work agencies and certain temporary employment undertakings are submitted to different rules, notably to the principle of equal treatment.
Concepts as “basic terms and conditions of employment”, “overall protection of temporary agency workers” as interpretated by the European Court of Justice case-law, and the relevance of collective agreements derogating from the principle of equal treatment, add a high degree of complexity in determining the remuneration due to workers hired out.
Social dumping and “serious disadvantage”
Moreover, the Belgian amendment introduces the definition of social dumping, and toughens most of the sanctions for failure to comply with the provisions of the Law of 5/03/2002 concerning the working, remuneration and employment conditions in case of posting of workers.
Find more information on Belgian regulations on posting in our guide on the posting of workers in Belgium.
In the Netherlands, a bill recently brought to the House of Representatives introduces the offence of “serious disadvantage”, i.e., abusing vulnerable people at the workplace. In addition to the abuse, there must be a serious disadvantage such as substantial underpayment, breach to the working hours rules, poor housing etc.
By courtesy of ILA – Immigration Law Associates