Special scheme of joint and several liability for unpaid wages in construction-related activities

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    Concept of joint and several liability for unpaid wages

    When an employer does not pay his/her worker (part or all of) his/her wage, the Law of 12 April 1965 on the protection of workers’ wages and salaries provides joint and several liability schemes which enable the worker, under certain conditions, to alternatively obtain the payment of his/her wage from third parties known as "jointly and severally liable debtors". 

    The Law of 12 April 1965 provides a special scheme relating exclusively to the direct contractor's joint and several liability in the case of construction-related activities. 

    This special scheme derives from the transposition into Belgian law, with regard to wage liabilities, of Article 12 of Directive 2014/67/ EU of the European Parliament and the Council of 15 May 2014 on the execution of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services and amending Regulation (EU) No 1024/2012 on administrative cooperation through the Internal Market Information System ("IMI Regulation").   

    Wage liabilities concerned 

    The special scheme covers the wage that is due to the worker but has not yet been paid:

    • by either the employer  
    • or by the person who is required to pay it on behalf of that employer.

      This refers to the employer who, for example, is insolvent in the event of bankruptcy.
      In such a case, the debtors can only be held jointly and severally liable for the wage (or part thereof) which has not been paid to the worker (in the event of default by the employer) by the guarantee fund concerned (at Belgian level, the compensation fund for dismissed workers in the event of business closure). 

    However, this special scheme is not applicable to the allowances to which this worker is entitled following the termination of the employment contract. 

    Activities concerned

    This special joint and several liability scheme only applies to construction-related activities.
     

    In other words, in the case of non-construction-related activities, the general joint and several liability scheme will be applied, under the conditions determined by it.

    Moreover, the special scheme relating exclusively to the joint and several liability of the direct contractor in the case of construction-related activities will not apply either when the worker whose wage has not been paid is an illegally staying third-country national.
    In such a case, the possible joint and several liability is in fact exclusively governed by     the special joint and several liability scheme for the unpaid wages of illegally staying third-country nationals.
    More information regarding this special joint and several liability scheme can be found by consulting the following webpage.
     

    Application to the direct contractual relationship only

    This special scheme for construction-related activities is only applicable in the case of a direct contractual relationship, irrespective of whether there is a chain of subcontractors or not.

    However, this does not call into question the appliction of the general joint and several liability scheme to indirect subcontracting relationships.
    In other words, the joint and several liability for unpaid wages in the case of an indirect subcontracting relationship, which is not governed by the new derogation scheme (relating exclusively to the joint and several liability of the direct contractor in the case of construction-related activities), continues to be governed by     the general joint and several liability scheme, under the conditions determined by it.

    Jointly and severally liable debtors concerned

     Two categories of potential jointly and severally liable debtors are covered by this special scheme:  

    • on the one hand, the client in direct contractual relationship with a contractor-employer and, 
    • on the other hand, irrespective of whether there is a chain of subcontractors or not, the contractor and the intermediate contractor (= subcontractor) in direct contractual relationship with a subcontractor-employer.

    However, this special joint and several liability scheme is not applicable to the client-natural person who has the aforementioned activities carried out for exclusively private purposes (eg an individual who has his/her house built).

    Procedure 

    Joint and several liability of the client  

    1. The client who calls in a contractor for construction-related activities is jointly and severally liable for paying the wage due to the worker employed by this contractor.

        The wage due corresponds to the work performed by the worker for the benefit of this client.

    2. However, the client is not jointly and severally liable if he/she is in possession of a written declaration, signed by him/her and his/her contractor, in which:

    • the client provides his/her contractor with the address of the Federal Public Service Employment, Labour and Social Dialogue's website, on which information on the wage due is available (in French language or in Dutch language) and;
       
    • the client's contractor certifies that he/she pays and will pay the wage due to the workers of this contractor.
       

    The aforementioned written declaration does not necessarily have to be a specific document. It may also be a clause in the contract binding the two parties. 

    3. By way of derogation from the above principle, the joint and several liability of the client in possession of the aforementioned written declaration may, however, be re-established for the future under the following conditions:

       the client will be jointly and severally liable for paying the wage due corresponding to the work performed by the worker for the client's benefit during the period starting from the expiry of fourteen working days following the moment when this client becomes aware of the contractor's failure to pay the wage.
     

    • In other words, in such a case the client will only be jointly and severally liable for future unpaid wages. 
       
    • Such awareness is established, amongst others, when the client is informed by the Labour Inspectorate, by notification, that his contractor is failing to pay the wage due to this contractor's workers.
      Such evidence may, however, also be provided in any other legal way.

    Joint and several liability of the contractor and the intermediate contractor (direct subcontracting) 

    1. The contractor (when there is no chain of subcontractors) and the intermediate contractor (when there is a chain of subcontractors) who use a subcontractor for construction-related activities are jointly and severally liable for paying the wage due to the worker employed by that subcontractor.

        The wage due corresponds to the work performed by the worker for the benefit of this contractor or, as the case may be, this intermediate contractor.

    2. The contractor and the intermediate contractor are not jointly and severally liable if they are in possession of a written declaration, signed by them and their subcontractor, in which:

    • the contractor and, as the case may be, the intermediate contractor provide their subcontractor with the address of the Federal Public Service Employment, Labour and Social Dialogue's website, on which information on the wage due is available (in French language or in Dutch language) and; 
       
    • the contractor’s or intermediate contractor’s subcontractor certifies that he pays and will pay the wage due to his workers.

      The aforementioned written declaration does not necessarily have to be a specific document. It may also be a clause in the contract binding the two aforementioned parties.

    3. By way of derogation from the above principle, the joint and several liability of the contractor (when there is no chain of subcontractors) and, as the case may be, the intermediate contractor (when there is a chain of subcontractors) in possession of the aforementioned written declaration may, however, be re-established for the future under the following conditions:

    this contractor or intermediate contractor will be jointly and severally liable for paying the wage due corresponding to the work performed by the worker for their benefit during the period starting from the expiry of fourteen working days following the moment when the contractor or, as the case may be, the intermediate contractor becomes aware of their subcontractor's failure to pay the wage.
     

    • In other words, in such a case the contractor and the intermediate contractor will only be jointly and severally liable for future unpaid wages. 
       
    • Such awareness is established, amongst others, when the contractor or, as the case may be, the intermediate contractor is informed by the Labour Inspectorate, by notification, that their subcontractor is failing to pay the wage due to their subcontractor's workers .

      Such evidence may, however, also be provided in any other legal way.

    Diagram 

    For an overview of possible jointly and severally liable debtors, please see this diagram (PDF, 294.73 KB). 
     

    Compulsory display 

    When the Labour Inspectorate informs a jointly and severally liable debtor (ie the client, the contractor or, as the case may be, the intermediate contractor), by notification, that the employer (ie the contractor or, as the case may be, the subcontractor with whom the jointly and severally liable debtor is in direct contractual relationship) has failed to pay the wage to which the workers are entitled within the relevant time frame, it also sends this employer a copy of the notification.
    This employer must display this notification in the place(s) where his workers perform the construction-related activities concerned. 

    If the aforementioned employer fails to display the notification, the jointly and severally liable debtor to whom the Labour Inspectorate sent the notification will be responsible for displaying the notification in these same place(s).

    Right of action of the representative organizations of workers and employers 

    Representative organizations of workers and employers may take legal action in litigations which might arise from the application of the special liability scheme relating exclusively to the direct contractor's joint and several liability in the case of construction-related activities in order to defend workers' rights.

    The implementation of such a right to take legal action is subject to the approval of the workers concerned.

    Besides, the action of these organizations does not affect the workers' right to act individually, to join the action or to intervene in the case.