- Leila Mstoian - Marcel Houben
- Directive 2014/67/EU , “mail box” companies , liaison-person , IMI-system
Cross-border posting of workers is often branded as a source of fraud and unfair competition. The European union tried to do something about it by enacting– after a first directive dated 16 December 1996 (96/71/EC) – another directive (2014/67/EU). Belgium has now – be it,again, somewhat late – amended the legislation accordingly. Does that avert the evil?
Cross-border posting of workers is an essential element for the European Union for safeguarding fundamental principles, such as free movement of workers, freedom of establishment and freedom to provide services.
However, a tricky issue in connection with cross-border posting of workers is the surveillance of compliance with the applicable rules in order to avoid fraud and unfair competition.
An often cited sticking point, by way of example, is the "posting" by foreign "mail box" companies, that do not engage in real activities in the home country, but merely recruit workers in the home country in view of employing ("posting") them immediately in another country.
Respect of the (minimal) salaries and terms and conditions of employment is another issue, which is often at stake.
The European union wanted to do something about that, among other things, by stimulating the cooperation among the inspection services of the member states.
In line with the above, the Belgian legislation has been amended.
Below, you will find a summary of the main elements.
1. Verification of the real nature of the posting
The notion "posting" implies two essential elements, namely:
1) a temporary employment of a worker in a country other than the country where he is usually employed (he has been hired),
2) by an employer who is effectively engaged in substantial activities in the latter country.
Practices, not meeting both conditions, are common knowledge: the example by excellence is the employer, who is merely a mailbox company in the home country.
In order to facilitate the detection of such practices, a non-exhaustive list of factual elements has been established, with respect to the worker as well as with respect to the employer, which are helpful to assess whether both conditions are effectively met.
2. Designation of a liaison-person
As known, the foreign employer, who assigns workers to Belgium, is obliged to file a previous notification thereof with the National Social Security Office (LIMOSA).
A second obligation has now been added: the foreign employer must from now on also appoint a liaison-person, who will act as the person of contact for the Belgian inspection services.
So, the Belgian inspection services may ask the liaison-person to submit information and documents, including:
- a copy of the employment contract of the posted worker or of a similar document;
- information relating to the terms and conditions of employment, applicable during or as a result of the assignment;
- information relating to the working time;
- evidence of effective payment of the salary.
3. Now also administrative fines and penal fines
A number of stipulations have been added to the Social Penal Code, pursuant to which violations of the rules relating to the posting of workers can be sanctioned by penalties of level 2: as a result, not only administrative fines may be imposed, but also penal fines.
4. Extension of the IMI-system
The IMI-system (Internal Market Information System) is an electronic tool designed to improve communication and cooperation between the administrations of EU-member states within the framework of the implementation of legislation relating to the internal market.
As from now on, the Belgian authorities have the possibility to call, via this IMI-system, on the assistance of the authorities of the other member states to notify an employer, established in the member state, the imposition of fines and to collect the fines.