Be Aware – December 2024

As of 2025, companies have to actively verify subcontractors’ right to work

In most cases, people who aren’t a national of an EU member state either need a work permit (if they’re an employee) or a professional card (if they’re self-employed) to be able to work in Belgium.

The employer should apply for the work permit. And the person involved should apply for a professional card. Companies subcontracting work can, however, also be held criminally liable if their direct subcontractor has recourse to persons who don’t have the right to work in Belgium. As of 1 January 2025, this risk will increase considerably in Flanders, as a duty to actively verify the right to work of all direct subcontractors enters into force.

Under the current legislation (which will still apply in 2025 in the Brussels region and Wallonia), a company using subcontractors has to have a written agreement with every subcontractor expressly confirming the obligation to comply with the legislation on the right to work.

Violating the right to work is a criminal offence. Merely having the clause is in principle enough to protect the company from liability if a subcontractor violates the legislation. But a company can still be held liable for an infringement by a subcontractor if the public prosecutor can establish the company knew its subcontractor was violating the legislation but continued using the subcontractor.

Under the new legislation, a company should still insert a clause in each contract with a subcontractor saying that the subcontractor will comply with the legislation on the right to work. Even with this clause, a company can still be held liable for an infringement by a direct subcontractor.

To avoid liability, the main contractor should be able to show it’s taken adequate care to make sure the direct subcontractor submits the documents listed in a Decree of 26 April 2024 for each person they have recourse to. For a person who normally works outside Belgium, these documents are:

• passport
• evidence confirming a right to reside in the European Economic Area or Switzerland
• if applicable, the Limosa declaration for the Belgian social security administration
• if applicable, confirmation that the national social security regime of the country where the person normally lives remains applicable. This will be the A1-form if the person is living in another EU member state or a certificate of coverage if the person is living in a country that has signed a treaty on social security with Belgium (for instance the US).

If the person normally lives in Belgium, the required documents are:

• passport
• evidence confirming the right to access the Belgian territory
• evidence confirming the right to work in Belgium (for instance a single permit or a professional card)
• if it concerns an employee, a Dimona declaration (the declaration to the Belgian social security administration confirming the entry into service)

If documents are missing, the main contractor should insist the subcontractor provides the missing documents. If a subcontractor refuses to do so, the new legislation requires the main contractor to inform the social inspection. The legislation doesn’t specify the timeframe in which the main contractor should do so.

If the inspection services notice a direct subcontractor has violated the right to work, and the main contractor can establish appropriate care by verifying these documents were presented (but were for instance credible forgeries, so there’s still a violation of the legislation on the right to work in Belgium), the main contractor isn’t liable, contrary to the direct subcontractor.

But if the main contractor can’t establish it checked the right to work in the required way, and a direct subcontractor infringes the legislation, the main contractor can also get a prison sentence of up to three years and/or a fine of EUR48,000 per worker involved. For companies, a prison sentence is impossible, so it’s converted into a fine of up to EUR576,000.

The new liability for infringements by subcontractors also applies outside the premises of the company. A main contractor can be held liable if the direct subcontractor employs people who aren’t entitled to work in Belgium at the subcontractor’s premises or any other location in Belgium.

The new liability on the other hand only applies to direct subcontractors. If the infringement is committed by a subcontractor of a subcontractor, the main contractor can only be held liable if the public prosecutor can establish the main contractor was aware of the infringement, but didn’t take the steps necessary to stop the infringement.

 

New remuneration threshold for non-compete clause and training clause

The Act of 3 July 1978 concerning employment contracts makes both the non-compete clause and the training clause subject to a remuneration threshold. The remuneration threshold is indexed every year on 1 January.

As of 1 January 2025, a non-compete clause is invalid if the gross annual remuneration at the moment the employment contract ends is lower than EUR43,106. The majority view holds that this remuneration threshold should be calculated in the same way as an indemnity in lieu of notice, so it includes all the benefits the employee is entitled to.

The case law states that only the former employee can state that the remuneration threshold hasn’t been met. The former employee can also decide to waive invoking this nullity of the non-compete clause, notably if the employee prefers to respect the clause and claim the payment of the non-compete indemnity.

If the annual remuneration is between EUR43,106 and EUR86,212, a non-compete clause is only possible for the functions determined by a collective bargaining agreement at the level of the joint committee. Only a few joint committees have signed a collective bargaining agreement on the non-compete clause. This is notably the case for the joint committee for hotels and restaurants, which makes a non-compete clause possible for most staff members in this remuneration range. This collective bargaining agreement also stipulates that the validity of the non-compete clause applies within an area of 5 km of the place of work.

If the gross annual remuneration is at least EUR86,212, a non-compete clause is possible, unless there’s a collective bargaining agreement at the level of the joint committee stipulating the contrary.

For sales representatives, a non-compete clause is possible if the annual remuneration is at least EUR43,106.

The training clause is also subject to the remuneration threshold of EUR43,106. If the annual remuneration of the employee is lower than this threshold, a training clause is not possible.

The training clause is linked to a second remuneration threshold. A training clause is only possible if the cost of the training is at least twice the minimum average remuneration under the collective bargaining agreement n° 43. This amount currently stands at EUR2,070.48, so a training clause is only possible for trainings costing at least EUR4,140.96.

The last clause subject to a remuneration threshold under the Act of 3 July 1978 is the arbitration clause. In principle, an employee and an employer can’t validly agree in advance that if a dispute arises, it will be settled through arbitration, and not through a procedure before the Employment Tribunal. But there is an exception where an arbitration clause is possible, which is the case of a worker with an annual gross remuneration of at least EUR86,212 who is in charge of the daily management of the company or a department of it. Bearing in mind the costs of arbitration, compared to the relatively low costs of litigation before the Employment Tribunals, it’s very rare to sign an arbitration clause.