We talk about forbidden posting when an employer provides its employees to a user who has any part of the authority over these workers that normally accrue to the employer.
It is therefore essential that the receiving company (the Belgian client) must not behave as an employer in respect to the employees of the foreign service provider.
The inspection services that check this, will conclude a prohibited posting from following elements: when the Belgian client is giving instructions directly to the staff of the service provider, provides transport and housing, the own staff mixes with the staff of the service provider, when the staff of the service provider is not working with their own material, ...
However, the law expressly prescribes that, in the context of a posting following matters will not be considered as the exercise of employers ' authority:
the observance by the user of the obligations on well-being at work;
instructions provided by the user in performance of the contract that connects him with the employer, both in terms of working and rest periods as in respect of the implementation of the agreed work.
As a result of this, it is extremely important to have a contractual agreement in which the work to be carried out is described accurately. An additional security can be built in by pointing out 1 representative of the service provider to which the contact person of the client can give any instructions in relation to the performance of the contract.
It is this representative – that so is employed by or associated with the service provider – that effectively gives further instructions to the staff of the service provider. Hence it is appropriate to this arrangement also expressly contractually negotiable and included in the contractor agreement.
It is this representative – that is employed by or associated with the service provider – that effectively gives further instructions to the staff of the service provider. Hence it is also appropriate to expressly and contractually negotiate this arrangement and include it in the contractor agreement.
In the case of prohibited posting, this can lead to multiple sanctions, including:
the user and the posted workers are considered to be connected by an employment contract of indefinite duration.
Note: when there is a prohibited posting, the Belgian client and the employees of the external service provider deemed to be connected by an employment contract, while no work permit nor labour card was requested.
Therefore, the inspection services investigate in an active way if there is any prohibited posting, because they then can prove that there also are offences on the law of 30 April 1999 stating that the application for a work permit – card is required for subjects of the 10 new EU Member States (this law contains very strict criminal penalties).
The user is, together with the service provider, jointly and severally liable for the payment of social security contributions, wages and allowances arising from the employment contract.
Criminal penalties for infringement of the rules on posting:
-imprisonment of eight days to one month and/or a fine of 26 to 500 EUR (x 5.5) that is applied as many times as there are workers in violation with a maximum of 50,000 EUR (x 5.5);
-If the hearing Labour officer does not move to prosecution, an administrative fine of 50 up to 1,250 EUR can be imposed, multiplying by the number of employees in violation with a maximum of EUR 20,000.
Circumvention of the legislation on work permits and cards
The inspection services are very suspicious when it’s about working with subcontractors from the new EU Member States. It’s very difficult for them to discuss the validity of an A1 form, while on the other hand, it is known that such forms are awarded rather ' smooth ' by the authorities of certain new Member States.
Hence, the inspection services, even if the posting is valid and there is no attempt to show that posting is prohibited, will try to show that the mounted structure is intended to get round with the regulations of the law of 30 April 1999 (on work permits and licenses).
This law of 30 April 1999 contains a regulation that sanctions the collaboration in the case of bypassing the law. So it is not because the Belgian client could not be seen as an employer of foreign workers, that there is no penalty possibility on the basis of the law of 30 April 1999.
The aforementioned regulation on participation in bypassing the law was till now rarely or never applied. We, however, understand from the inspection services, that they intend to use this regulation to avoid bypass constructions.
Abuse of the weak position of foreign workers
Another regulation that is used by inspection services to avoid constructions with foreign sub-contractors, is ended since the law of 10 August 2005. Until this law the abuse of the weak position of foreign nationals in itself was punishable.
However, the law of 10 August 2005 concretized this abuse on the basis of human trafficking and slumlords.