Be Aware – June 2024

Belgium introduces duty to actively monitor the right to work of subcontractor staff

In principle, workers who aren’t a national of an EU-Member State need a work permit to be allowed to work in Belgium. Similarly, third-country nationals need a professional card to work in Belgium. In both cases, there are some exceptions.

In case of infringement, severe sanctions can be imposed on the employer or the self-employed person. But infringements are often committed by the last company in a chain of subcontractors, and not by the main company involved.

Article 12/4 of the Act of 30 April 1999 concerning the employment of foreign workers stipulates the possibility to hold the principal liable for infringements on the legislation concerning subcontractors’ right to work. But in practice it was rarely applied.

The legislation followed a three-step approach.

The first step is the general principle that a principal can be held liable if a direct contractor infringes the legislation on the right to work. This principle only applies to direct contractors, not to infringements by a subcontractor of the direct contractor.

There’s another reason why this first step was generally purely theoretical. The second step of the reasoning stipulates that this liability for infringements by a direct contractor doesn’t apply if the principal has a written document in which the direct contractor confirms it doesn’t employ people without the right to work in Belgium. So it’s enough to include a clause in the contracting agreement stipulating the contractor will comply with the legislation. While the content of this clause is obvious in the light of the fact it concerns mandatory legislation subject to criminal sanctions in case of an infringement, the clause excluded the liability for infringements by a direct subcontractor, unless the third step of the reasoning applied.

This third step holds that the principal can be held liable for an infringement by a direct subcontractor if the principal was aware of the infringement.

A Flemish Decree of 27 October 2023 fundamentally amended the second step of the reasoning. The Decree hasn’t yet entered into force, as there was no implementing Decree. The Official Journal of 4 June 2024 included a Decree of 26 April 2024 with the necessary implementation measures, stipulating the Decree of 27 October 2023 will enter into force on 1 January 2025.

The second step of the reasoning is converted into a duty for the principal to actively verify and monitor that its direct subcontractors are complying with the right to work. To avoid being liable for infringements by a direct contractor, under the new legislation the principal must not only have a written statement by the direct contractor confirming it’s complying with the legislation on the right to work, but the principal must also have shown “appropriate diligence” to prevent an infringement by the direct subcontractor.

The Decree of 26 April 2024 clarifies this notion of “appropriate diligence”. The principal has to systematically require the direct contractor to submit the information necessary to verify the compliance with the right of access to the Belgian territory and the right to work for every person the direct contractor employs.

For each person the direct contractor employs, the principal has to ask for the necessary documents to verify compliance. This includes the passport of the person involved. The other required documents depend on whether the worker is employed by a company only working in Belgium on a temporary basis, or rather a company based in Belgium.

For foreign companies working in Belgium on a temporary basis, the required documents include evidence confirming the right of residence in the home country, the Limosa-declaration to the Belgian social security administration (which is an existing obligation) and evidence confirming the social security regime of the home country remains applicable during the period in Belgium.

For staff normally employed in Belgium, the required documents include evidence confirming the right of access to the Belgian territory, evidence confirming the right to work in Belgium, and if applicable, evidence confirming the social security declaration of entry into service.

If a direct contractor fails to submit the required documents, the principal should notify the social inspection.

The Decree of 26 April 2024 stipulates the government will set up an online application facilitating the monitoring of the required documents. This application still needs to be developed, so it’s unclear how this will work in practice.

It’s also unclear how the payroll agency can help an employer, as a payroll agency will normally not have most of the required information (for instance a copy of the passport of each worker).

The new legislation enters into force on 1 January 2025. As it concerns a Flemish Decree, it only applies to the Flemish region. The legislation remains as it is in the Brussels region and in Wallonia.

The legislation is applicable irrespective of the terms of the service agreement. So we recommend businesses amend service agreements by adding clauses on the practical modalities of this new legislation, for instance by requiring the contractor to provide the required documents a certain period in advance. Then the contractor will have time to check the documents, the steps to be taken if documents are not drafted in English, French or Dutch, and the liability of the contractor.

New mandatory time registration for most cleaning activities as of 1 September 2024

Under Belgian law there’s no broad requirement for every employer to have a time registration system in place. That is despite the case law of the European Court of Justice requiring employers to use one.

But there are an increasing number of specific provisions making the use of a time registration system mandatory. For instance, this is the case when using a floating work schedule.

In the construction sector, a time registration system called “check-in-at-work” has been in place for several years. The aim of the system is broader. It’s mainly used to combat the use of undeclared labour at the construction site covered by the system. Everyone accessing or leaving the construction site has to be registered. This also makes it possible to monitor compliance with the working time regulations.

The government initially conceived the “check-in-at-work”-system for the construction sector, but afterwards broadened it to slaughterhouses. The Programme Act of 26 December 2022 announced the introduction of the same system for cleaning activities. While the Programme Act stipulated it would enter into force on 1 January 2024, this deadline lapsed because there was no Royal Decree determining the implementation modalities.

The Official Journal of 3 June 2024 included a Royal Decree with those necessary implementation modalities. So the time registration for cleaning activities will become mandatory as of 1 September 2024.

The new legislation applies to contractors or subcontractors performing cleaning work and pertaining to the joint committee for cleaning activities (joint committee n° 121). There’s no mandatory time registration for “internal” cleaning staff, as the joint committee for cleaning activities only applies to cleaning activities for third parties.

The system also applies to both workers and self-employed persons performing cleaning or maintenance work.

The time registration should meet the requirements imposed by the National Office for Social Security. It should process the identification data of the worker (or self-employed person involved) of the employer (or the principal), the moment each person arrives at the place of work and the moment they start and finish work.

In principle, the registration system only implies obligations for the employer, ie the external cleaning company. So the sanctions in case of an infringement can in principle only be imposed on the external cleaning company and its managers.

But a company using an external cleaning firm failing to comply with the time registration system could indirectly be held liable on the basis of the general criminal law rules concerning complicity. For instance, if it’s aware the cleaning firm employs undeclared workers but still continues to use the cleaning firm because it’s cheaper than cleaning firms complying with their obligations.