BELGIUM New posting rules fully implemented
As from 1 October 2017, the amendments of the Law of 5 March 2002 (implementing Directive 96/71/EC and its enforcing Directive 2014/67/EU), are fully enforceable (and in context the financial penalties).
Royal Decree of 14 September 2017, published by the Official Gazette of 20 September 2017, provides for additional information to be submitted via the posting declaration (LIMOSA):
- The nature of services provided by the posted worker.
- The person designated to liaise with the competent authority (name, date of birth, address, e-mail, phone number, nationality, capacity to represent the employer).
The Royal Decree has entered into force on 1 October 2017.
What does the change mean for companies posting workers to Belgium?
- Before sending the LIMOSA declaration, the employer must designate a natural person to liaise with the competent authority, send out and receive documents if need be. The appointment shall not be subject to any residence restriction (e.g. the “designated person” may be resident of the home country).
- The “designated person” only act on behalf of the employer (the latter will be held responsible for failure to comply).
- The “designated person” must keep the following documents:
-copy of the letter of assignment (providing that such letter can be considered as “equivalent” to the employment contract in the sense of Article 4 Directive 91/533/CEE)
-time sheets indicating the beginning, end and duration of the daily working time.
-copy of the salary slips (in the sense of Art 15bis Law of 12/04/1965 and Art6quinquies Royal Decree n° 5 of 23/10/1978 both as amended).
-proof of payment of wages.
The documents must be provided in either electronic or paper form, translated into one of the official languages or into English. The choice is given to the competent authority and is mutually exclusive. The authority is yet to communicate such choice; Documents provided in English should be accepted.
During the period of the assignment and within one year after its completion, the documents must be available upon request.
Failure to designate a person to liaise with the competent authorities will result in a breach of Art 184/1 Social Criminal Code. A criminal fine of 300 to 3000 euro can be inflicted or an administrative fine of 150 to 1500 euro levied.
Failure to provide where required, a copy of the letter of assignment, time-sheets and proof of payment of wages, will result in a breach of Art 188/2 Social Criminal Code. A criminal fine of 300 to 3000 euro can be inflicted or an administrative fine of 150 to 1500 euro levied. The amount is multiplied by the number of workers affected by the breach.
The new legislation does not preclude the host company from being held responsible together with the sending company for failure to send the LIMOSA declaration before the commencement of the assignment in Belgium (Articles 106, 107 and 183/1 Social Criminal Code).
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