Principle
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.
Sanctions
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.
