Posting of workers- retroactive application of collective agreements- arrears of remunerationcriminal sanctions

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Last year, the Belgian Court of Cassation confirmed a ruling convicting a foreign employer for nonpayment of arrears of remuneration due to a posted worker by virtue of the retroactive application of a collective agreement.

In accordance with Article 32 of the Law of 5 December 1968 on Collective Agreements and Joint Committees: “The Royal Decree rendering the collective agreement compulsory shall take effect from the date of entry into force of the collective agreement. In no case, however, may it have retroactive effect for more than one year before its publication”.

Pursuant to Article 5§1 of the Law of 5 March 2002 concerning working and remuneration conditions in the event of posting of employees to Belgium, “ An employer who employs a posted worker in Belgium is held to comply, for the work performed in that country, with the conditions of work, remuneration and employment provided for by legal and regulatory provisions which are sanctioned under criminal law, as well as by collective bargaining provisions made compulsory by the King in accordance with the law of 5 December 1968 on collective labour agreements and joint committees”.

Reading in conjunction Article 32 of the Law of 5 December 1968, and Article 5 §1 of the Law of 5 March 2002, it follows that from the moment a collective agreement is rendered compulsory by Royal Decree, employers posting workers to Belgium, must comply inter alia with the conditions of remuneration set forth by the applicable collective agreement, with effect from the date of entry into force of the said agreement (considering the eventual retroactive effect).

It follows that employers posting workers to Belgium, are held to pay where relevant, arrears of remuneration due by virtue of a collective agreement rendered compulsory with retroactive effect.

In accordance with Article 52 of the Law of 5 December 1968, violations of the provisions of that Act shall be sanctioned in accordance with the Social Criminal Code.

Pursuant to Article 162 of the Social Criminal Code:

“Payment of workers' remuneration

An employer, his agent or representatives is sanctioned with a level 2 penalty if he:

  • fails to pay the worker's remuneration or fails to pay it on the date on which it is due
  • has not paid the holiday pay due or has not paid it within the time limits and in accordance with the regulatory procedures provided for by the laws relating to the annual holidays of salaried workers…..

The minimum and maximum criminal or administrative fines shall be multiplied by 12 where, on the one hand, the minimum remuneration applicable in the sector concerned is not paid to the worker…

In the case of the offences referred to in this Article, the fine shall be multiplied by the number of workers concerned.”

A level 2 penalty can be a criminal fine of EUR 400 to EUR 4000, or an administrative fine of EUR 200 to EUR 2000.

The takeaway

Compliance with the “posting rules” requires inter alia assessment of the conditions of work, remuneration and employment provided for by legal and regulatory provisions which are sanctioned under criminal law, as well as by the relevant applicable collective agreement, rigorous determination of the conditions applicable to each specific case, and constant follow up on amendments of the legal framework that regulate such conditions. 

Tanel Feldman

Senior Partner , Immigration Law Associates

Immigration Law Associates provides in-depth advice on rights and obligations triggered by the cross-border element of a given legal situation. Our know-how is built on an extensive experience in EU law and is supported by a network of partners across the EU. Social security coordination : • Autonomous application of the social security coordination regulations and ECJ case-law, to any situation involves a cross-border element EU Company law : • Establishment -permanent activities • Establishment -self-employment activities International Private Law : • Law applicable to the employment relationship Labour and employment law : • Freedom of movement of workers-equal treatment, access to social benefits • Employment contracts and termination of employment • Working conditions • Employee benefits • Transfer of undertakings • Authorisations of work for third-country nationals Special regimes : • Posted workers • Frontier workers • Highly mobile workers • Employment of record • Intra-EU mobility of third-country nationals