Transparent, predictable, and fair conditions for posted workers

Like Comment

The Law of 19 June 2022, transposes into the Belgian law Directive 2020/1057/EU laying down specific rules with respect to Directive 96/71/EC and Directive 2014/67/EU for posting drivers in the road transport sector.

The law amends and supplements:

  • the Law of 5 March 2002 on the posting of workers
  • the Law of 12 April 1965 on the protection of remuneration
  • the Royal Decree n° 5 of 23 October 1978 concerning the retention of social documents
  • the Law of 24 July 1987 on temporary work, temporary agency work and hiring out of workers for the benefit of users
  • the Law of 12 August 2000 implementing social, budgetary, and miscellaneous provisions
  • the Social Criminal Code

In addition to the provisions relating to the posting of drivers in the road transport sector, the Law of 19 June 2022 (Art 10), amends Art 7/1 Law of 5 March 2002 on the posting of workers, to align it to the provisions of Directive 2019/1152 on transparent and predictable working conditions.

The amendment is concerned with the information relevant in determining the essential terms and conditions of employment applicable in the country in which the worker habitually works, information that employers posting workers are required to provide to labour inspectors in Belgium, upon request.

Directive 2019/1152 will be transposed into the national law by a distinctive act.

Article 7(2) Directive 2019/1152 imposes information obligations on employers posting workers from the Member State (MS) in whose territory the formers are established. The EU Commission confirmed that “they see that provision as an extension of Art 7(1), in which the wording refers to ‘before the worker’s departure’, which means that the obligation is not on receiving (host) Member States.”

The Belgian law will provide for obligations on employers posting workers from Belgium.

Employers posting workers to Belgium, will be bound by the “sending Member State” national law (as regards information must be provided to posted workers, before the commencement of the assignment, pursuant to Art 7 Directive 2019/1152), and by Articles 7/1, 8 and 9 Law of 5 March 2002 (as regards information must be provided to labour inspectors in Belgium, upon request).

On EU level, as regards the pre-posting information, Art 9.1(b) Directive 2014/67 covers the information must be provided pursuant to Art 7 Directive 2019/1152 (replacing Art 4 Directive 91/533).

It follows that the following documents must be made available before the commencement of the assignment:

  • employment contract or an equivalent document that contains the essential terms and conditions of employment applicable in the MS in which the worker habitually works, the latter pursuant to Art 5.1 read in conjunction with Art 4.2 Directive 2019/1152 and
  • provided that the employment contract was concluded or amended in accordance with the provision of Directive 2019/1152, an additional document (letter of assignment) that contains at least the mandatory information laid down by Art 7 Directive 2019/1152
  • provided that the employment contract does not contain the mandatory information in accordance with Directive 2019/1152, the additional document that entails the essential terms and conditions of employment applicable in the MS in which the worker habitually works (pursuant to Art 5.1 Directive 2019/1152), must contain the mandatory information in accordance with Art 7 Directive 2019/1152 as well (i.e., a letter of assignment that contains the essential terms and conditions of employment as well)

In addition to granting predictable and transparent working conditions to posted workers, the pre-posting information is used by competent authorities in determining:

  • the essential terms and conditions applicable to the employment relationship
  • the terms and conditions of employment will be applicable during the assignment period (intended terms and conditions)

The factual performance will be ascertained based on the other documents must be retained during the posting period and after its completion, in accordance with the host MS’ national law provisions transposing Art 9.1 (b) to (d) Directive 2014/67.

The takeaway

Requirements to provide documents for posted workers, must be understood from the perspective of the main goal must be achieved by the Posting of Workers Directive, notably to ensure the freedom to provide services on an equitable basis : “However, as noted in paragraphs 56 and 90 of this judgment, the Union legislature sought, in adopting the contested directive, to ensure the freedom to provide services on an equitable basis, namely within a regulatory framework guaranteeing competition which is not based on application, in the same Member State, substantially different levels of terms and conditions of employment depending on whether or not the employer is established in that Member State, while offering greater protection to posted workers, such protection being, moreover, as stated in Recital 10 of this Directive, the means of "safeguarding the freedom to provide services on an equitable basis” (ruling of 8 December 2020, Poland v  EU Parliament and Council ,C-626/18, ECLI:EU:C:2020:1000 paragraph 104).

In simple words, the goal is ascertaining compliance with terms and conditions of employment.

 

 

 

 

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