New obligations for assignment of workers
- Leila Mstoian - Marcel Houben
- Employment Law
- Directive 2014/67/EU , “mail box” companies , liaison-person , IMI-system
Cross-border assignment 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 assignments 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 “assignment” 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 (“assigning”) 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.
The notion “assignment” 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.
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 number of stipulations have been added to the Social Penal Code, pursuant to which violations of the rules relating to the assignment of workers can be sanctioned by penalties of level 2: as a result, not only administrative fines may be imposed, but also penal fines.
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.