Watch out to short-term assignments

The draft law transposing Directive 2019/1152 on transparent and predictable working conditions was brought to the Belgian Chamber of Representatives.

The interoperability between Directive 2019/1152 that create obligations on the employer by virtue of the sending Member State (MS) law, and Directive 2014/67 that create obligations on the employer by virtue of the host MS law, carries some level of legal uncertainty.

Pursuant to Article 22 Directive 2019/1152, “The rights and obligations set out in this Directive shall apply to all employment relationships by 1 August 2022. However, an employer shall provide or complement the documents referred to in Article 5(1) and in Articles 6 and 7 only upon the request of a worker who is already employed on that date.”

Articles 48 to 50 of the draft law transpose Art 22 Directive 2019/1152 (as of the date on which the law will enter into force).

Article 10 of the Law of 19 June 2022 transposing Directive 2020/1057 on the posting of drivers, amends Art 7/1 Law of 5 March 2002 on the posting of workers, to align it to the provisions of Directive 2019/1152.

The amendment is concerned with the information relevant in determining the essential terms and conditions of employment applicable in the country in which the worker habitually works (pursuant to national provisions transposing Art 7 read in conjunction with Articles 5.1 and Art 4.2 Directive 2019/1152), information that employers posting workers are required to provide to labour inspectors in Belgium, upon request (pursuant to Art 7/1 Law of 5 March 2002).

Art 7/1 applies regardless of when the employment contract was concluded.

In simple words, unless an employment contract concluded before the date on which the law will enter into force contains the information pursuant to Art 7/1 Law of 5 March 2002, employers posting workers to Belgium must provide that information, regardless of when the employment contract was concluded.

Unless a specific exemption is relevant, the obligation to provide information applies regardless of the duration of the assignment.

In the same context, Art 6 of the draft law transposes Art 7.4 Directive 2019/1152, notably the exemption from the obligation to provide additional information for workers sent to another Member State or to a third country if the duration of each work period outside of Belgium is four consecutive weeks or less.

That exemption must be read in conjunction with the obligations that arise from the host MS national law transposing Art 9.1(b) Directive 2014/67. Such transpositions lay down the obligation to communicate (to labour inspectors in the host MS, upon request), the information provided for by Art 4 Directive 91/533 (now Art 7.1 Directive 2019/1152).

Where the provisions contain the information must be provided (and not reference to Art 4 Directive 91/533), employers are bound by that obligation regardless of the sending MS law transposing Directive 2019/1152.

Adding the various transpositions of Art 3.3 to 3.5 Directive 96/71/EC as amended by Directive 2018/957, and of Art 9.1(c) Directive 2014/67, short-term assignments raise a high degree of complexity.

That being said, the non-transposition of Art 3.3 to 3.5 Directive 96/71/EC, causes a significant hardship (e.g., pay slips that must reflect work in the sending MS, and in several other MS).

The “piece by piece” application of the principle of favourability imposed by certain MS national law, adds a layer of complexity.   

Monitoring the duration of the posting in view of determining the initial period of 12 months (considering the replacement condition), represents another significant hardship.

Last but not least, fines for failure to comply are in general multiplied by the number of workers concerned, however, are not proportional to the duration of the assignment.

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