EU Directive 96/71/EC concerning the posting of workers in the framework of the provision of services [1] seeks to avoid 'social dumping' by ensuring that a minimum set of rights is guaranteed for workers posted by their employer to work in another country. The basic principle is that the working conditions and pay in effect in a Member State should be applicable both to workers from that State, and those from other EU countries posted to work there. The Directive covers undertakings established in a Member State, which, in the framework of the transnational provision of services, post workers to the territory of another Member State.[1] http://europa.eu.int/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=EN&numdoc=31996L0071&model=guichett
This article examines the Belgian situation, as of June 2003, with regard to: legislation and collective bargaining on the pay and conditions of posted workers (ie workers from one EU Member State posted by their employer to work in another); the number of such posted workers; and the views of the social partners and government on the issue.
EU Directive 96/71/EC concerning the posting of workers in the framework of the provision of services seeks to avoid 'social dumping' by ensuring that a minimum set of rights is guaranteed for workers posted by their employer to work in another country. The basic principle is that the working conditions and pay in effect in a Member State should be applicable both to workers from that State, and those from other EU countries posted to work there. The Directive covers undertakings established in a Member State, which, in the framework of the transnational provision of services, post workers to the territory of another Member State.
The Directive establishes a core of essential regulations aimed at ensuring employees' minimum protection in the country in which their work is performed. It guarantees the application of the host country's statutory and regulatory provisions relating to:
maximum work periods and minimum rest periods;
minimum paid annual holidays;
minimum rates of pay, including overtime rates (excluding supplementary occupational retirement pension schemes);
the conditions of hiring-out of workers, in particular the supply of workers by temporary employment agencies;
health, safety and hygiene at work;
protective measures with regard to the terms and conditions of employment of pregnant women or women who have recently given birth, of children and of young people; and
equality of treatment between men and women and other provisions on non-discrimination.
As well as these generally applicable statutory and regulatory provisions, a Member State's collectively agreed provisions on these issues must also be applied to workers in the construction sector (where these are based on 'collective agreements or arbitration awards which have been declared universally applicable').
The Directive allows for a number of exceptions to all or some of these 'minimum provisions' for: the crew of merchant ships; staff involved in the initial assembly and/or first installation of equipment; postings lasting less than a month; and where 'the amount of work to be done is not significant'. The Member States were obliged to transpose the Directive by 16 December 1999.
In 1999, the European Industrial Relations Observatory (EIRO) conducted a comparative study on posted workers and the implementation of the Directive. In June 2003, the EIRO national centres in each EU Member State (plus Norway), have updated the basic information in the earlier comparative study, four years on, in response to a questionnaire. The Belgian responses are set out below (along with the questions asked).
Regulatory framework
What changes were made to national legislation in your country in order to implement the Directive? And have there been any further changes to the relevant legislation since then?
The posted workers Directive was transposed into Belgian law (some time after the deadline) by the law of 5 March 2002 concerning 'the posting of workers in the framework of the provision of services, and introducing a simplified system of maintaining social documents for employers that post workers to Belgium'.
Please outline very briefly the current legal position of posted workers in your country - are they covered by specific or general employment legislation, what is their position with regard to social security (are they covered under the social security system in their country of origin or the host country?) etc. Also, have any specific measures been taken to prevent abuses arising from the posting of temporary agency workers (eg an agency hiring temporary workers through a subsidiary in a low labour cost country and sending them to work for a user company in a higher labour cost country)?
As the name of the March 2002 law suggests, it is in two parts, with the first implementing the Directive and the second (put into operation by a Royal Decree of 29 March 2002, published in the Moniteur belge on 19 April 2002) creating a simplified system for maintaining social documents- obligatory personnel records that employers must keep - when workers are posted to Belgium.
Under the legislation, a posted worker is one who performs work in Belgium either:
in the context of work normally performed in a country other than Belgium; or
in the context of an arrangement agreed in a country other than Belgium, but carried out in Belgium.
Belgian law applies as soon as work is performed in Belgium, irrespective of its scope or duration. An employer which employs posted workers in Belgium is, in respect of the work performed there, obliged to comply with the working conditions and conditions of payment and employment set out in legal, regulatory and collectively agreed documents. In the event of non-compliance, the employer will be liable to penalties under the law. Given that the law is formulated in this manner, its objective is more wide-ranging than the Directive. In particular, the law provides:
for posted workers to be covered by the provisions all collective agreements made mandatory by Royal Decrees (and not just those dealing with the construction sector); and
that posted workers are covered by Belgian provisions not only on the pay and conditions dealt with in the Directive, but also by those on other matters of public importance.
The Belgian law cannot deprive workers during their postings of more favourable working conditions or conditions of pay or employment. It does not apply to merchant navy seafarers or their employers.
Simplified system of documentation
Under the second part of the 2002 law, employers that post staff to Belgium are exempt from drawing up and maintaining the social documents and work rules provided for under Belgian law for the first six months of the secondment, as long as they meet two conditions:
they must previously have sent the Belgian Social Legislation Inspectorate (Inspection des Lois Sociales) a secondment statement containing information relating to the employer, the worker and the conditions of the posting; and
they must, as far as pay is concerned, keep available for perusal by the inspection services for six months a copy of the documents that they must maintain under the terms of the foreign legislation binding them, and which are equivalent to the relevant Belgian documents (ie pay statements and individual accounts). The period of six months runs from the beginning of the employment of the first posted worker in Belgium.
Employers which fulfil these two conditions are thus exempt for the first six months of the secondment from producing a large number of documents provided for in Belgian law, such as the staff register and pay statements issued each time wages are paid. After the six months have passed, employers posting staff to Belgium are deemed to be employers established in Belgium, and must therefore draw up and keep social documents and work rules in accordance with Belgian law.
Have there been any collective agreements concluded on the issues covered by the Directive? Have the social partners been consulted as part of the legislative and policy-making process and, if so, in what way? Have the social partners taken any other initiatives related to posted workers?
| The social partners were consulted on implementation of the Directive through the National Labour Council (Conseil National du Travail/Nationale Arbeidsraad, CNT/NAR). First, the then Minister of Employment and Labour, Miet Smet, referred to the CNT/NAR a request for an opinion on the bill aiming to transpose the Directive into Belgian law. On 17 November 1999, the CNT/NAR issued Opinion No. 1290 in which it suggested that the Minister should first take note of the Council of State’s opinion. However, the next Minister of Employment and Labour, Laurette Onkelinx, asked the CNT/NAR to take a decision on the bill tabled by her predecessor as soon as possible, and its Individual Employment Relations Committee (Commission des Relations individuelles du Travail/Commissie Individuele Arbeidsverhoudingen) thus resumed discussions. On 30 May 2000, when the Committee had published its report, the CNT/NAR issued Opinion No. 1313 on the bill |
The social partners have taken no other initiatives in this field. The posted workers issue is not additionally covered by collective bargaining, no doubt because the statutory framework is well defined at national legislative level and is sufficiently encompassing to take account of all situations.
The workers affected
Please provide the latest figures available on the number of employees who are posted from your country to other EU Member States.
No figures are available on the number of workers posted from Belgium to other countries.
Please provide similar figures, if available, for employees posted to your country from other EU Member States.
To benefit from the simplified system for holding social documents (see above), the foreign enterprises concerned must, prior to the posting of workers, file a secondment statement with the central administration of the Social Legislation Inspectorate. Figures from the Inspectorate relating to the period from 1 April 2002 to 23 June 2002 indicate that secondment statements were filed in respect of 1,914 workers. To this figure should be added the workers for whom no secondment statement has been filed with the Inspectorate, and in respect of whom foreign enterprises are wholly governed by the Belgian law relating to social documents. However, these data are not available.
Workers in the construction industry
The EU Directive, although of general application, is aimed particularly at workers in the construction industry (building and public works), in which discrepancies between practice and legal standards are often observed. Has any special action been taken by the social partners or the state to address the situation of posted workers in this industry?
The transposition of the Directive into Belgian law applies to all workers in the private sector. The construction sector has no specific regulation relating to the issue of posting. The social partners and government have taken no specific action in this area.
The positions of the social partners and government
Please outline the stances adopted by the social partners and the public authorities/government on this issue. Particular attention should be given to unions and employers in the construction industry.
In their views submitted to the National Labour Council, the social partners set out their positions on the bill implementing the Directive.
The trade unions were in favour of the bill, arguing that it was necessary to avoid a reduction in the level of social protection, and that there was therefore a need to achieve as much equal treatment as possible in the field of working conditions and conditions of employment between Belgian and posted workers. They fully supported the bill's approach, which guaranteed equal treatment between Belgian workers and seconded workers from other countries and thereby avoided 'social dumping'. The unions were delighted that the drafters of the bill had taken full advantage of the openings offered by the Directive to provide a broad definition of the national legislation’s scope of application to posted workers: leaving the mandatory exceptions to one side, no use was made of the Directive's optional opportunities for exemption - on the contrary, the opportunity was taken to extend the scope. Furthermore, the unions approved of the fact that the bill provided for some key statutory provisions to be applied to posted workers immediately, irrespective of their nationality, the duration of their stay, and the nature of their work.
Employers’ associations strongly supported the principle of an EU Directive that forces Member States to impose certain minimum obligations on foreign enterprises that post workers to their country. The employers stressed how important they believed the matter to be. Transposition of the Directive would result in Belgium legislation that would put an end to years of legal uncertainty in the area of determining which employment law provisions should apply to foreign enterprises that second workers to work in Belgium. The employers’ associations presented some alternatives to the bill's approach, insisting that implementation of the obligation to submit a statement prior to carrying out business in Belgium should be practically feasible.
Overall, the Belgian posted workers law puts an end to a legally blurred situation and is thus seen as beneficial by the trade unions and employers’ associations. (Catherine Delbar, Insitut des Sciences du Travail, UCL)
Nadácia Eurofound navrhuje citovať túto publikáciu takto.
Eurofound (2003), Thematic feature - posted workers, article.
