Posting of workers : New EU rules approved (K law)

Authors: Alexis Ceuterick and Maxim Ruysschaert (K law)

Date of publication: 0307/2018

On June 21, 2018, the European Council of Ministers of Work formally approved the revision of Directive 96/71/EC on the posting of workers in the framework of the provision of services (hereafter: Posting of Workers Directive). The Posting of Workers Directive only relates to labor law and does not touch upon social security aspects. Those are laid down in Regulation 883/2004/EC on the coordination of social security systems, which is currently being reconsidered, yet there are no changes for the time being.

The key modifications of the revised Posting of Workers Directive will be further analyzed below.

Initial Posting of Workers Directive

Since its approval in 1996, the initial Posting of Workers Directive defines a limited set of core minimum terms and conditions of employment in force in the host Member State where the task is carried out. These terms and conditions must be applied to the posted worker during the temporary cross-border provision of services, even though the employment contract is still governed by the law of the sending Member State.

The initial Posting of Workers Directive has been transposed into Belgian law by the Act of March 5, 2002. Since then, the employer posting workers to Belgium must, for work carried out in Belgium, as from day one, comply with the working, wage and employment conditions, laid down by Belgian legislative, regulatory and conventional provisions that are subject to penal sanctions; unless of course the rules of origin are more profitable for the posted worker.

Revised Posting of Workers Directive

The main components of the revised Posting of Workers Directive are the following:

  • The duration of posting will be limited to 12 months, with an optional extension of up to maximum 18 months. After this period, the posted worker will be subject to the mandatory rules of protection of the labor law of the host Member State, with the exception of the conditions and procedures for concluding and terminating the employment contract and the supplementary occupational retirement pension schemes;
  • The universally applicable collective bargaining agreements will have to apply to posted workers in all industries and not only for the construction industry. This is already the case for Belgium;
  • The set of core terms and conditions of employment has been expanded, introducing the concept of remuneration, including overtime rates, rather than minimum rates of pay and adding to the list the conditions of workers’ accommodation and allowances of expenditure to cover travel, board and lodging expenses. Furthermore, the scope of application of these core requirements has been extended to universally applicable collective bargaining agreements;
  • The temporary work agencies are to guarantee to posted workers the same terms and conditions of employment that apply to temporary agency workers hired out in the Member State where the work is carried out;
  • The Member States may, in the absence of universally applicable collective bargaining agreements, base themselves on non-universally applicable collective bargaining agreements which are generally applicable to all similar undertakings in the geographical area and industry concerned;
  • The revised Posting of Workers Directive does not apply to the international road transport industry which will continue to apply the rules of the initial Posting of Workers Directive up until the industry-specific regulations, currently being negotiated at European level, will come into force.
Practical impact for postings of workers to Belgium

Due to the broad transposition of the initial Posting of Workers Directive by Belgium in the Act of March 5, 2002, the practical impact of the above changes will be relatively limited for postings of workers to Belgium, given that many of the new rules are already in force today in Belgium.

By contrast, when a Belgian company sends workers abroad, the impact of the revised Posting of Workers Directive can be greater, depending on how that host Member State transposed the initial Posting of Workers Directive into its local legislation.

How does this affect your business and how can K law assist you?

It must be taken into account that, within a few years, more local legislation may be applicable to postings of workers throughout Europe, seeing that Member States have been given two years to adapt their local legislation to the new rules and put them into effect.

K law is happy to assist companies with the posting of workers from and to Belgium, taking care of all the mandatory documentation and other formalities in this respect.

Moreover, K law can provide you with further detailed information with regard to the discussed changes and can assess any other possible alternatives which exist in terms of worker mobility.