The introduction of a duty to actively monitor the right to work of subcontractor staff

Workers who are not a national of an EU-Member State, need in principle a work permit in order to be allowed to work in Belgium. Similarly, third country nationals need in principle a professional card inn order to be entitled to work in Belgium. In both cases, there are nevertheless a number of exceptions.

In case of infringement, severe sanctions can be imposed on respectively the employer or the self-employed person him- or herself. If the inspection services notice infringements, these are nevertheless often committed by the last company in a chain of subcontractors, and not by the principal company involved.

While the article 12/4 of the Act of 30 April 1999 concerning the employment of foreign workers stipulated the possibility to hold the principal liable for infringements on the legislation concerning the right to work by subcontractors, this possibility was in practice rarely be applied.

The legislation followed a three-step approach. The first step is the general principle a principal can be held liable if a direct contractor infringes the legislation on the right to work. This principle only applies to direct contractors, not to infringements by a subcontractor of this direct contractor.

The second reason why this first step generally remained purely theoretical, is that the second step of the reasoning stipulates that this liability for infringements by a direct contractor does not apply if the principal has a written document in which the direct contractor confirms not having recourse to persons without the right to work in Belgium. It sufficed thus to include a clause in the contracting agreement stipulating the contractor will comply with the legislation. While this content of this clause is obvious in the light of the fact it concerns mandatory legislation subject to criminal sanctions in case of an infringement, this clause had the consequence of excluding the liability for infringements by a direct subcontractor, unless if the third step of the reasoning applied.

This third step holds that the principal can be held liable for an infringement by a direct subcontractor if the principal was aware of the infringement.

A Flemish Decree of 27 October 2023 fundamentally amended the second step of the reasoning. This Decree did nevertheless not yet enter into force, as there was no implementing Decree. The Official Journal of 4 June 2024 included a Decree of 26 April 2024 with the necessary implementation measures, stipulating the Decree of 27 October 2023 will enter into force on 1 January 2025.

The second step of the reasoning is converted into a duty for the principal to actively verify and monitor the compliance by its direct subcontractor with the right to work. In order to avoid being liable for infringements by a direct contractor, the principal must under the new legislation not only have a written statement by the direct contractor confirming the compliance with the legislation on the right to work, but the principal must also have shown “appropriate diligence” in order to prevent an infringement by the direct subcontractor.

The Decree of 26 April 2024 clarifies this notion of “appropriate diligence”. It requires the principal systematically requires the direct contractor to submit the information necessary in order to verify the compliance with the right of access to the Belgian territory and the right to work for every person the direct contractor has recourse to.

For each person the direct contractor has recourse to, the principal must indeed request being provided with the documents necessary in order to verify compliance. This includes in any event the passport of the person involved. The other required documents depend on whether the worker is employed by a company only working in Belgium on a temporary basis, or rather a company based in Belgium.

For foreign companies working in Belgium on a temporary basis, the required documents include evidence confirming the right of residence in the home country, the Limosa-declaration to the Belgian social security administration (which is an existing obligation) and evidence confirming the social security regime of the home country remains applicable during the period in Belgium.

For staff normally employed in Belgium, the required documents include evidence confirming the right of access to the Belgian territory, evidence confirming the right to work in Belgium, and if applicable, evidence confirming the social security declaration of entry into service.

If a direct contractor fails to submit the required documents, the principal should notify this to the social inspection.

The Decree of 26 April 2024 stipulates the government will set up an on-line application facilitating the monitoring of the required documents. This application still needs to be developed, hence it remains unclear on how this will work in practice.

The same remark applies in relation to the clause that the payroll agency can assist an employer, as a payroll agency will normally not have most of the required information (for instance a copy of the passport of each worker).

The new legislation enters into force on 1 January 2025. As it concerns a Flemish Decree, it only applies to the Flemish region. The legislation remains as it is in the Brussels region and in Wallonia.

It concerns mandatory legislation, applicable irrespective of the terms of the service agreement. It is nevertheless clearly recommendable to amend the service agreement by adding clauses on the practical modalities of this new legislation, for instance by requiring the contractor provides the required documents a certain period in advance, so the contractor has the time for checking these documents, the steps to be taken if documents are not drafted in English, French or Dutch, the liability of the contractor, etc.

Written by: Eddy Lievens, Laurent De Surgeloose, Pierre Dion