At the end of 2016, Belgium has changed the legislation, applicable on posted workers, in order to implement EU Regulation 2014/67/EU in Belgian internal law. The legislation results from the continuous efforts of the European Union to ensure proper employment law protection for employees, who are temporarily assigned from one member state to another member state and to facilitate the review and control of assignments by member state authorities.

Both inbound temporary assignments into Belgium and outbound assignments from Belgium to other countries need to comply with the rules. This includes the application of fundamental salary and employment conditions, as imposed by the legislation of the host country, where the employment takes place.

Key features:

1. protection of employees, who are temporarily assigned from Belgium to another EER country or to Switzerland;
2. obligation for foreign employers to appoint a liaison person in Belgium, prior to the start of the assignment;
3. specific rules for the construction sector (liability to pay salary arrears);
4. penalties in case of non-compliance with the rules.

 Definition of ‘temporary assignment’

In real life situations, it is not always easy to properly identify cases, which fall under the rules for temporary assignments. Criteria are now introduced to facilitate the identification of scenarios of temporary assignment.

Definition of an assigned employee or assignee: these are employees, who

• usually work on the territory of one or more countries, other than Belgium
• have been hired outside Belgium

and who are actually carrying out employment duties in Belgium of a temporary nature.

Substance test for the employer in the country of origin: elements are defined to determine whether the enterprise, initiating the assignment, carries out substantial activities in the home country. In this way, the use of mail box companies or similar structures by the employer is discouraged.

New requirement: liaison person

An employer, who wants to temporarily assign an employee to Belgium, needs to continue to file LIMOSA reports (this requirement is not new) and in addition must appoint a liaison person prior to the start of the assignment. This liaison person acts as the contact point for the host country authorities and must also be able to provide the legally required documents to the Belgian authorities upon their request.

The liaison person is a private individual (not a corporate entity). It is not required that the liaison person is a resident of Belgium.

Any individual can act as a liaison person, such as:

• the employer (individual)
• a representative of the employer
• an employee
• a third party

The liaison person will act on behalf of the foreign employer, who remains responsible for the delivery of all documents, requested by Belgian inspection authorities. More details on the appointment of a liaison person will be defined in a Royal Decree.

Severe penalties can be imposed in case no liaison person has been appointed or if the liaison person is not provided by the employer with all documents, requested by the authorities. The amount of the penalties can become substantial depending on the number of employees, who have been assigned to Belgium.

Documents to be kept

4 types of documents can be requested by Belgian authorities with the liaison person and can be provided in a paper or in electronic format:

1.  copy of the employment agreement or of a similar document (for example an assignment letter);
2. information regarding all terms and conditions, proper to the temporary assignment to Belgium, such as for example cash allowances, benefits in kind, rules regarding the repatriation of the assignee, etc…
3. overview of working hours: start and ending moment of the work day and duration of the work day of the assignee;
4. evidence of the actual payment of all salary elements; these are monthly pay documents and the annual salary overview (‘individual account’) showing all salary payments of a calendar year.

Documents can be made up in any language, but the authorities may request a translation in one of the Belgian official languages (mainly Dutch or French).  It is now also allowed to provide translations in English language. Documents must be kept at least one year after the end of the assignment.

Construction activities

Specific concerns exist regarding construction activities, carried out in Belgium. Additional rules are now introduced regarding the joint liability of the principal and contractors for the payment of salaries. They can become liable for the payment of the salary of construction workers, who are employees of a contractor or who were assigned to a contractor.

Fines and penalties

In the past, authorities of EU member states often experienced considerable difficulties in collecting fines and penalties from an employer, who is located in another member state.

The collection of such fines and penalties is now facilitated:

• penalties, imposed by a foreign member state, can be collected by the Belgian authorities. In such case, they can be kept by Belgium and do not need to be remitted to the other state;
• penalties, imposed by Belgium can be collected by the authorities of other member states. In such case, they can be kept by the foreign member state and do not need to be remitted to Belgium.