Hereafter we outline the obligations as established in Belgian and European legislation for companies settled in a Member State posting workers to Belgium.
Preliminary obligations for companies posting workers to Belgium
Firstly, before starting the assignment in Belgium, the foreign employer is obliged to submit an electronic declaration, via the Belgian government portal, known as the Limosa declaration.
This document must contain: details about the employer, about the contact person, the nature of the services, the client, the place of work and the period of the posting in Belgium.
Secondly, the foreign employer appoints the contact person, who manages the contacts with labour authorities in case of need. The appointed representative is not necessarily domiciled in Belgium but must be available for the period of the posting.
Availability of the documents related to the posting to Belgium at the place of work
The Belgian Labour Inspectorate can ask for the following documents, until one year after the end of the assignment: :
- Copy of the employment contract of the posted worker or an equivalent document containing the main terms and conditions of employment applicable in the Member State in which the worker usually works.
- Information on the currency used to pay wages, the benefits in cash and in kind linked to the expatriation, and the conditions of repatriation of the posted worker (if not already mentioned in the document referred in point 1).
- Timesheets that include the beginning, end and the total amount of the daily working time of the posted worker.
- Pay slip and Proof of payment of the wages of posted workers.
Nevertheless, these documents should also be available on the work place during the assignment.
In addition, employers having submitted the LIMOSA are exempt for a period of 12 months as of the date of which the first employee starts working in Belgium from preparing and retaining the following documents:
- work regulations
- staff register
- individual accounts of payment/pay slips in accordance with the Belgian law
Indeed, after 12 months, the foreign employer must prepare and retain these documents and appoint a social mandate holder.
Activities exempt from the notification obligation
Certain categories of persons and activities are exempt from the obligation to transmit the LIMOSA declaration, for instance artists, diplomats, employees working in international transport and academic conferences.
Moreover, there is an exemption in cases of installation and initial assembly of machinery sold by the posting company, which sends specialised workers for a maximum duration of 8 days.
Similarly, urgent repair of the same machine is also exempt from the notification duty for a maximum period of 5 days per month.
Belgian Working and salary conditions
During the first period of 12/18 months, employers posting workers to Belgium, are bound by the terms and conditions of work, remuneration and employment:
- laid down by legal and regulatory provisions whose non-compliance is subject to criminal sanctions and
- determined by binding collective agreements
It is important to remind that the concept of remuneration does not include refund for costs actually incurred during the posting (travel, board, and lodging).
Assignments to Belgium lasting more than 12 months
In cases where the period of the posting to Belgium exceeds 12 months, the foreign employer may obtain an exemption, for an additional six-month period, from the obligation to apply the additional Belgian working conditions in accordance with the special scheme normally applicable in that case.
Specifically, the sending undertaking notifies the extension, submitting a motivated notification to the Belgian Labour Inspectorate. The authorities will calculate the 12-months period as the effective cumulative duration of different postings (not necessarily continuous and including replacement of workers), during which the posted workers carry out the same task at the same work place.
However, after the period of 18 months, employers posting workers to Belgium must compy with all terms and conditions of work, remuneration and employment. Especially, these are:
- defined by legal and regulatory provisions. (except for procedures, formalities and conditions of the conclusion and termination of employment contracts, including non-competition clauses).
- determined by binding collective agreements, except for:
- procedures, formalities and conditions of conclusion and termination of employment contracts, including non-competition clauses
- supplementary occupational retirement pension schemes
Social Security coordination in Belgium
According to the European Regulation 883/2004, a posted worker may continue to be covered for a maximum period of 24 months by the social security of the Member State where his employer is located, during the period of his posting to Belgium.
Therefore, the worker must hold the A1 Certificate, issued by the relevant social security institute in the sending State.
Specific requirements for temporary agencies
In Belgium, temporary employment agencies must obtain prior authorisation from the competent regional authority (Brussels, Flanders or Wallonia). Evidently, without this authorisation, they cannot legally carry out agency work.
As a result, the posting of temporary workers to Belgium is severely restricted. Subsequently, temporary employment is actually only possible for the performance of certain types of work, including:
- replacing a permanent employee;
- to meet the needs of a temporary increase in work;
- to ensure the performance of exceptional work.
Penalties for non-compliance as defined by the Belgian Social Penal Code
The Social Penal Code establishes administrative and/or penal sanctions for failure to send the Limosa declaration. Indeed, this type of infringement is punished with level 4 penalties:
- The amount of the criminal sanction can be between €4.800 and €48.000,
- Administrative penalty of between €2.400 and €24.000.
Accordingly, these amounts are multiplied by the number of workers for whom the offence was committed. In the case of failure to indicate the contact person, the Social Penal Code provides for a level 2 fine:
- The amount of the criminal sanction may be between €400 and €4.000;
- Administrative penalty of between €200 and €2.000.
With regards to criminal sanctions, imprisonment is also possible for some types of serious infringements.