Additional working conditions applicable as of 30 July 2020 if the period of posting exceeds 12 months

Principle and derogations

From the beginning of the thirteenth month of posting, regarding the work performed by posted workers after the first twelve months and provided that this work be performed from 30 July 2020 in addition to the working, remuneration and employment conditions already applicable during the first twelve months of posting, the employer of posted workers must also apply a set of additional working, remuneration and employment conditions.

These additional working, pay and employment conditions are provided for in legal and regulatory provisions which do not carry criminal sanctions and relate to the rights and obligations of the worker and the employer and the suspension of the employment contract.

NB The employer may, however, be granted certain derogations with regard to the application of such additional working, pay and employment conditions.

Additional working, pay and employment conditions

Obligations of the worker and the employer

General obligations and liability of the worker  

General obligations of the worker

The worker is required to:

• perform his/her work carefully, honestly and conscientiousness, at the time, place and under the conditions agreed upon; 
• act in accordance with the orders and instructions given to him/her by the employer, his/her agents or his/her representatives, for the purpose of performing the contract; 
• to refrain from disclosing trade or business secrets, as well as any personal or confidential information which might have come to his/her knowledge during the course of his/her professional activity, or from engaging or cooperating in any act of unfair competition; 
• to refrain from doing anything which may harm either his/her own safety or that of his/her colleagues, the employer or third parties;  
• to return the work instruments and raw materials entrusted to him/her in good condition to the employer.

Liability of the worker

During the execution of his/her contract, the worker may make mistakes or errors leading to damage to the employer or a third party (another worker, client of the employer, ...). In both cases, his/her civil liability is limited.

Liability of the worker towards the employer

The worker is liable only if s/he has committed deceit, gross negligence or slight negligence but of a habitual rather than accidental nature.

• Deceit: wilful misconduct which always implies the will to harm.
  Examples: theft, swindling, voluntary destruction of equipment, ...
   
• Gross negligence: such a gross and excessive mistake that it is unforgivable on the part of the person making it.
  Examples: smoking in a room where flammable materials are stored in spite of a prohibition sign, driving under a bridge with a truck that is too high in spite of a warning sign, ...
   
• Slight negligence of a habitual nature: minor mistake which may be made by a normally attentive person. If it is of a repetitive nature, the worker shall be held liable.
  Example: repeated negligence by the worker in developing software.

The worker cannot be held liable for wear and tear due to the normal use of the work tools or the professional vehicle placed at his/her disposal, nor for their accidental and involuntary loss.

If the worker is held liable, s/he must repair any damage caused to the employer.
The amount of the damages must be established by mutual agreement (or, failing that, by the court) and only after the facts for which the worker is held liable have occurred.

The damages established may be deducted from the remuneration to be paid to the worker but may not exceed 1/5^th of that remuneration. This limit shall not apply if the worker acted deceitfully.

Liability of the worker towards third parties  

A third party is any person other than the employer, for example, another worker of the company or a person who is a stranger to it.

The worker’s civil liability is also limited to cases of wilful misconduct, gross negligence and habitual slight negligence.

This rule is intended only to limit the liability of the worker himself/herself. The employer remains civilly liable for any damage caused to a third party due to any fault of the worker.

General obligations of the employer  

The employer is required to:

• have his/her worker work under the agreed conditions, at the agreed time and place, in particular by placing the aid, instruments and materials necessary to carry out the work at his/her disposal;
• ensure that the work is carried out under proper conditions regarding the worker’s safety and health and that first aid is provided in the event of an accident;
• pay the remuneration under the agreed conditions, at the agreed time and place;
• give the worker the time necessary to fulfil the duties of his/her religion, as well as the civil obligations arising from the law;
• devote the necessary attention and care to welcoming workers and, in particular, young workers;
• carefully keep the work instruments belonging to the worker and his/her personal belongings which must be stored in the company.

S/he shall in no case have the right to withhold such work instruments or belongings. 

In addition, the employer shall be held liable for faults due to defective materials, data, tools or equipment supplied by him/her.

Suspension of the execution of the employment contract 

Various events may suspend the execution of the employment contract.

These grounds for suspension may produce particular effects, in particular with regard to remuneration (whether or not the payment of it is maintained). 

Sickness and accident  

The execution of the employment contract shall be suspended during any period of incapacity for work resulting from sickness or accident. In this context, a number of obligations still have to be fulfilled by the worker.

In principle, the worker remains entitled to his/her remuneration for a certain period. This entitlement differs according to the status of the worker (manual worker or employee). 

Obligation of the worker in the event of sickness or accident

Responsibility

The execution of the employment contract shall be suspended during any period of incapacity for work resulting from sickness or accident.

Every worker who is incapacitated for work must report the following information to his/her employer:

• s/he must immediately notify his/her employer of his/her incapacity for work, except in cases of force majeure.

This notification must enable the employer to control the incapacity for work and organize work during the worker's absence;

• s/he must provide his/her employer with a medical certificate if a collective agreement made compulsory by Royal decree (i.e. criminally sanctioned) or the the terms and conditions of employment (work regulation) so prescribe or if the employer requests it.   

The medical certificate mentions the incapacity for work and its probable duration and whether, in view of an examination, the worker may possibly go to another place.

Except in cases of force majeure, the worker must send this certificate or hand it over within the deadline laid down in the collective agreement made compulsory by Royal decree (i.e. criminally sanctioned) or in the the terms and conditions of employment (work regulation). 

If no deadline has been laid down, the deadline set by law is 2 working days, starting from the day of incapacity or from the day the invitation has been received.

Control and availability  

Control 

The employer can have the reality of the incapacity for work controlled by the examining doctor of his/her choice.

Medical examinations can only be carried out by a doctor who has been authorized to practice the art of healing and who has five years' experience as a general practitioner or as an equivalent physician. 

The worker is required to submit to this examination. 

Unless the medical certificate states that the worker's medical condition does not allow him/her to travel, the worker must go to the examining doctor if s/he is requested to do so.

The worker's travel expenses shall be borne by the employer. 

The examining doctor shall verify the reality of the incapacity for work, check the probable duration of the incapacity and, where appropriate, other medical data necessary to apply the legislation (for example, data which have an impact on the determination of the guaranteed salary). All other findings remain covered by medical secrecy. 

The examining doctor shall submit his/her findings in writing to the employer as soon as possible.

In order to draw up his/her report, the examining doctor may first contact the worker’s GP and, if they disagree, try to reach an agreement.  

When s/he receives the examining doctor's findings, the worker may disagree with these findings, which shall be recorded in writing by the examining doctor.  

If a dispute of a medical nature arises between the worker and the examining doctor, it may be resolved through an arbitration procedure.

The first party to act may initiate this procedure within two working days of the examining doctor submitting his/her findings. In any case, the courts and tribunals shall remain sovereign in this matter.

An arbitrating doctor may be appointed by mutual agreement between the examining doctor and the general practitioner.  

To appoint the arbitrating doctor, an express mandate may be given by the employer to the examining doctor, and by the worker to the doctor who issued the medical certificate.

If they cannot reach an agreement, an arbitrating doctor, who is on the list of arbitrating doctors, may be appointed unilaterally.

This list is available on the following web pages:  

• in French
• in Dutch

The arbitrating doctor shall carry out the medical examination and rule on the medical dispute within three working days following his/her appointment.

  The cost of this procedure, as well as any travel expenses incurred by the worker, shall be borne by the losing party.

The arbitrating doctor shall inform the doctor who issued the medical certificate and the examining doctor of his/her decision. The employer and the worker shall be notified in writing by registered postal mail. 

Availability

The so-called "period of availability", i.e. the daytime period during which the worker must remain at the examining doctor’s disposal, may, under certain conditions, be determined by a collective labour agreement made compulsory by Royal decree (i.e. criminally sanctioned) or by the the terms and conditions of employment (work regulation). 

The fact that the worker is absent from home or place of residence during this period of availability without a legitimate justification or force majeure, may be regarded as an act intended to evade medical examination.

The period of availability includes a maximum of 4 uninterrupted hours, between 7 a.m. and 8 p.m.

This period of availability must be applied in strict compliance with the principles of proportionality, given the purpose of medical examinations. This means that this additional obligation must be limited in time for the worker and must be restricted above all to the beginning of the period of sickness.

In addition, the worker may still invoke force majeure or legitimate reasons to explain his/her absence during the scheduled daytime period (e.g. the worker's hospitalisation, visit to the GP, visit to the pharmacy for urgent medicines, etc.).

Please also note that the period of availability must not infringe the employer's right to control the worker throughout the period of his/her invalidity or the worker’s obligation to submit to this control. 

Consequences for the guaranteed remuneration 

Every worker who does not immediately inform his/her employer of his/her incapacity for work and/or who does not submit the required medical certificate within the imposed deadline or who evades the medical examination loses his/her right to the guaranteed remuneration (guaranteed salary for manual workers and employees. This applies to the days preceding the warning, the submission of the medical certificate or the medical examination.

Guaranteed salary in the event of sickness or accident of common law

If the worker is incapacitated for work as a result of an accident or a sickness other than an occupational disease or an accident at work, s/he is entitled to continued payment of his/her remuneration by his/her employer for a certain period of time.

The requirements for this guaranteed remuneration differ depending on whether the worker is a manual worker or an employee.

In some cases of incapacity for work, the worker is not entitled to a guaranteed remuneration.

Guaranteed salary for manual workers

Every manual worker who has been working continuously for the company for at least one month is entitled to a guaranteed remuneration to be paid by his/her employer in the event of an incapacity for work.

If the manual worker reaches one month's seniority during the period of incapacity, s/he is entitled to his/her remuneration for the remaining days of the first 30-day period of incapacity during which the employer is required to pay the remuneration.

The entitlement to the guaranteed salary starts from the 1^st day of incapacity. 

However, this is not the case if the period of incapacity for work begins on a day of guaranteed daily salary, i.e. a working day which has been started but has been interrupted due to the incapacity for work (see below “Lost hours (guaranteed daily salary)”. 

In this case, the period of guaranteed salary for manual workers only starts on the day following the day covered by the guaranteed daily salary, exactly as for employees.  

During the first 30 calendar days of incapacity for work, the manual worker keeps his/her remuneration as follows:

	Part of normal remuneration
Period	To be paid by the employer
Day 1 to day 7	100 %
Day 8 to day 14	85,88 %
Day 15 to day 30	25,88 % of that part of the remuneration that does not exceed the monthly ceiling of €3746,49 (amount as at 01.01.2020) 85,88 % of the remuneration that exceeds this ceiling.

Be careful!

A manual worker is only entitled to his/her guaranteed remuneration for the normal working days for which s/he would have been entitled to his/her remuneration if s/he had not been unable to work.  

This means that the remuneration is not due for days on which the worker would not have worked anyway (e.g. Saturdays and Sundays, in the classic situation of a five-day week scheme).

Guaranteed salary for employees 

Employee hired for an indefinite period, for a definite period of at least 3 months or for clearly defined work that normally requires at least 3 months of employment

Every employee remains entitled to his/her remuneration to be paid by the employer during the first 30-day period of incapacity for work, regardless of his/her seniority.

	Part of normal remuneration
Period	To be paid by the employer
Day 1 to day 30	100 %

 

Employee hired for a definite period of less than 3 months or for clearly defined work that normally requires less than 3 months of employment

Where an employee is hired for a definite period of less than three months or for clearly defined work that normally requires less than three months of employment, s/he remains entitled to the guaranteed salary under the same conditions as those laid down for manual workers.

In order to be entitled to the guaranteed salary, the employee must have been working continuously for the company for at least one month. 

If the employee reaches one month's seniority during the period of incapacity, s/he is entitled to his/her remuneration for the remaining days of the first 30-day period of incapacity during which the employer is required to pay the remuneration.

Every employee who has at least one month’s seniority remains entitled to his/her remuneration despite his/her incapacity to work.

During the first 30 calendar days of incapacity, the employee receives his/her remuneration as follows:

 

	Part of normal remuneration
Period	To be paid by the employer
Day 1 to day 7	100 %
Day 8 to day 14	86,93 %
Day 15 to day 30	26,93 % of that part of the remuneration that does not exceed the monthly ceiling of €3746,49 (amount as at 01.01.2020)   86,93 % of the remuneration that exceeds this ceiling

Successive incapacities: relapse

It is possible for a worker to be incapacitated for several periods in succession.

When two incapacities follow one another without interruption (e.g. successive sicknesses of a different nature), there is only one period of incapacity and the guaranteed remuneration is not due again.

Besides, a relapse occurs when the worker is incapacitated again after returning to work normally.

In this case, the guaranteed remuneration is not due again if the new incapacity for work occurs within the first 14 days following the end of a period of incapacity for work that gave rise to the payment of the guaranteed remuneration.

However, the worker is still entitled to the guaranteed salary for the remaining period of incapacity, if the entitlement to the guaranteed salary has not been fully exhausted during the first period of incapacity.

A new guaranteed salary is also due again if the worker can prove by means of a medical certificate that this new incapacity for work was caused by another sickness or accident.

Exclusion

The guaranteed remuneration is not due to the worker:

• if s/he has been injured while exercising during a sport competition or exhibition for which the organiser receives an entry fee and for which the participants receive remuneration in any form whatsoever;
• if the incapacity for work was caused by a serious fault made by the worker. 

Lost hours (guaranteed daily salary) 

This refers to certain cases in which a worker, who was fit to work at the time of going to work, could not perform all or part of his/her daily tasks.

In that respect, in spite of the worker being unable to perform all or part of his/her daily tasks, s/he shall remain entitled to his/her normal remuneration for a full working day (guaranteed daily salary) in the following cases:

• when the worker, after leaving for work normally, arrives at work late or does not arrive at all, provided that the delay or absence was caused by an event occurring on the way to work and beyond his/her control. 

Example: bad weather hindering travel, such as fog, ice or snow, train delay, sudden public transport strike,

• when the worker, after arriving at work normally, cannot either start or continue work due to a cause beyond his/her control, except in the case of a strike.

Example: bad weather or technical accidents such as a machine breakdown, making it impossible to start or continue work, a case of force majeure, such as fire or flooding in the workplace which suspends the execution of the employment contract, an incapacity for work which occurs during the course of the working day as a result of an accident or a sickness, a worker who has started work but has to leave because s/he has been informed that a member of his/her close family has died suddenly.

"Leaves of absence" (short absences)  

Every worker has the right to be absent from work with continued payment of his/her normal remuneration to participate in family events, perform his/her civil duties or missions and appear in court.

During this absence, the employment contract shall be suspended.

In order to retain his/her right to remuneration, the worker must notify his/her employer of his/her absence in advance.

If this is not possible, s/he must notify the employer as soon as possible.

S/he must use this leave for the purpose for which it was granted.

The specific events covered by this right to be absent from work with normal remuneration and the authorised duration of such absence are as follows: 

• Marriage of the worker: 2 days to be chosen during the week in which the event takes place or in the following week;
• Marriage of a child of the worker or his/her spouse, of a brother, a sister, a brother-in-law, a sister-in-law, of the father, the mother, the stepfather, the stepmother, of a grandchild of the worker: on the day of the marriage;
• Ordination or entry into the convent of a child of the worker or of the worker's spouse, brother, sister, brother-in-law or sister-in-law: on the day of the ordination;
• Death of the spouse, of a child of the worker or his/her spouse, of the father, the mother, the stepfather or the stepmother of the worker: three days to be chosen during the period which starts on the day of the death and ends on the day of the burial; 
• Death of a brother, a sister, a sister-in-law, a brother-in-law, a grandfather, a grandmother, a grandchild, a great-grandfather, a great-grandmother, a great-grandchild, a son-in-law or a daughter-in-law who lives with the worker: two days to be chosen during the period which starts on the day of the death and ends on the day of the burial;

In addition, the brother-in-law, sister-in-law, grandfather, grandmother, great-grandfather, great-grandmother of the spouse are assimilated to the brother-in-law, sister-in-law, grandfather, grandmother, great-grandfather, great-grandmother of the worker.

• Death of a brother, a sister, a sister-in-law, a brother-in-law, a grandfather, a grandmother, a grandchild, a great-grandfather, a great-grandmother, a great-grandchild, a son-in-law or a daughter-in-law who does not live with the worker: on the day of the burial;

In addition, the brother-in-law, sister-in-law, grandfather, grandmother, great-grandfather, great-grandmother of the spouse are assimilated to the brother-in-law, sister-in-law, grandfather, grandmother, great-grandfather, great-grandmother of the worker.

• Solemn communion of a child of the worker or his/her spouse: on the day of the ceremony (if this takes place on a Sunday, a public holiday or a normal day of inactivity: the normal day of activity after or before the event);
• Participation of the child of the worker or his/her spouse in the secular youth celebration: the day of the celebration (if this takes place on a Sunday, a public holiday or a normal day of inactivity: the normal day of activity after or before the event);
• Participation in a meeting of a family council convened by the Justice of the Peace: the time necessary with a maximum of one day;
• Interrogation as a witness before the Courts or personal appearance ordered by the Labour Court: the time necessary with a maximum of five days;

Finally, Belgian labour legislation treat the legal cohabitant as a spouse.