This newsletter gives a short overview of the latest legal and administrative developments when temporarily posting workers to Belgium. The topics covered are relevant for both foreign posting employers and Belgian service users.

1. The Limosa notification and the place of work: administrative clarifications

When filing a Limosa notification for your posted workers, you must, amongst others, identify the place of work. However, this is not always easy to do.

An employer has the option to communicate the place of work in four different ways: (i) by giving the exact address of a company; (ii) by stating the address where telework is being performed; (iii) by identifying a work site; or (iv) by indicating a region. To help posting employers, the social security administration has issued some practical guidelines and clarifications on when and how to use each of these options.

2. The revised Social Penal Code: a definition of “social dumping”, increased penalties and the introduction of new infringements

Since 1 July 2024, a revised Social Penal Code applies.^[1]Many of the changes are relevant for posting employers as well. We outline some of the highlights below:

• The Social Penal Code now includes a legal definition of “social dumping”:

“A wide range of deliberate abusive practices and the circumvention of existing European and/or national legislation, including laws and generally binding collective bargaining agreements, that enable unfair competition by illegally minimising labour and operating costs, and that result in the violation of workers’ rights and exploitation of workers.“

Social dumping is often associated with non-genuine postings of workers and self-employed persons. The introduction of this legal concept in the Social Penal Code emphasizes that the fight against social dumping will also in the coming years remain a top priority of the various inspection services.

That being said, it is important to clarify that “social dumping” does not constitute a standalone infringement, subject to one specific penalty.

• Increased penalties for level 3 and level 4 infringements

Infringements are punished with a level 1, 2, 3 or 4 penalty. The penalties for level 3 and level 4 infringements have now been increased:

For example, non-compliance with the Limosa obligation is punished with a level 4 penalty.

• Introduction of new infringements

A few new infringements have also been introduced. From now on, and by way of example, an out-of-time renewal of a LIMOSA is also explicitly punished with a level 4 penalty.

Please also note the new limitations (and penalties) applicable in contractor chains. From 1 January 2025 it will no longer be possible for a subcontractor to subcontract the performance of the entire service contract that the subcontractor concluded with the main contractor. This rule will only concern certain sectors, such as the construction sector. More detailed information on this topic will be shared in a separate newsletter.

3. Checks now available online of the PDOK/OPOC debts of your foreign contractor active in the construction sector

As you probably know, in several sectors, such as when performing works on immovable goods, a withholding obligation applies when your contractor has social debts. In a nutshell, this means that you should withhold 35% from the invoice amount and pay it directly to the Belgian social security administration.

Whether a contractor has social debts, can be checked on thecheckinhoudingsplicht.be/checkobligationderetenue.bewebsite.

4. Extension of the presence registration for cleaning activities as from 1 September 2024 – transition phase until 31 December 2024

At any workplace where maintenance and/or cleaning activities of immovable property are performed on behalf of a client, the presence (arrival, departure and rest breaks) of each natural person (employees, self-employed, interim workers, posted workers, (sub)contractors, etc.) must be recorded electronically. To date, this obligation only applies to sites that are subject to a “declaration of works”. To register their presence, individuals should use the “Check In and Out at Work (CIaO)” application.

Until the end of this year, no penalties will be imposed for non-compliance, except in the case of fraud.

5. Upcoming: A new duty of care obligation in the fight against illegal employment in the Flemish region as from 1 January 2025

In the aftermath of some highly-publicised social dumping cases in the media, the Flemish government introduced a “duty of care”- obligation in its fight against bogus posting set-ups involving illegal employment.

A contractor is required to act in a diligent manner when contracting a direct subcontractor, and to try to prevent that such a direct subcontractor employs illegal third-country nationals or develops activities as a self-employed person without having obtained the required residence permits.

To do so, the contractor must not only include a written declaration in the services contract confirming that the direct subcontractor does not employ illegal third-country nationals. As from 1 January 2025, the contractor also has an obligation to ask the direct contractor to provide (to the extent applicable) certain information:

If the direct subcontractor does not provide the required information after a first reminder, then the social inspection services must be notified. The contractor does not have the obligation to verify whether the information received is correct.

To facilitate contractors, an online application will be set-up allowing consultation of some of the requested documents. This online application is not yet available.

ALTIUS’ Employmentteam is available to assist foreign employers considering posting workers to Belgium. Furthermore, the Altius’ employment team can provide further guidance regarding any additional employment and immigration-related formalities, registrations and obligations triggered by a posting set-up.

If you have any specific questions or would like more detailed information about these topics, then please contactPhilippeDe WulforEmma Van Caenegem.