Increased liability for right to work breaches by subcontractors

15 January 2024 2 min read

By Laurent De Surgeloose

At a glance

  • Non-EU workers are only entitled to work in Belgium after their employer has obtained a work permit, although there are some exceptions to this requirement;
  • Breaches of the right to work requirements are often committed by contractors or subcontractors;
  • The Act on the Employment of Foreign Workers 1999 establishes contractor liability for subcontractor violations of the right to work. While liability could be avoided by a written subcontractor agreement, the Flemish region's 27 October 2023 Decree significantly restricts this option;
  • A Decree determining when the new legislation will come into force is awaited.

Non-EU workers are only entitled to work in Belgium after their employer has obtained a work permit, subject to certain exceptions. If a person takes up work in Belgium without being entitled to do so, a level four sanction under the Code on Social Criminal Law can be imposed on the employer/decision maker within the employer. A level four sanction is a prison sentence of up to three years and/or a fine of EUR48,000 per worker involved. For companies, the prison sentence is converted into a fine of up to EUR576,000. The employer may also have to pay the costs of the repatriation of the worker.

Right to work breaches are often committed by contractors or subcontractors, in which case sanctions can be imposed on the employing company. However, there are also risks for the principal or the main contractor if a subcontractor breaches right to work laws. In particular, there is a risk of being subject to sanctions as an accomplice of the (sub)contractor.

Article 12/4 of Act on the Employment of Foreign Workers 1999 establishes contractor liability for subcontractor violations of the right to work.  While liability could be avoided by a written subcontractor agreement, the Flemish region's Decree of 27 October 2023 significantly restricts this option.  Contractors must now not only obtain written statement from direct subcontractors confirming compliance with right-to-work legislation but must also demonstrate ‘appropriate diligence’ to avoid liability. The legislation lacks a precise definition of ‘appropriate diligence,’ but emphasises the need for subcontractors to supply comprehensive data about workers, addressing both their rights to enter Belgium and to work. Further details will be outlined in an implementing Decree.

If a subcontractor fails to provide this information, the main contractor should immediately inform the Social Inspectorate.

The obligation to request this data only applies to persons working for a direct (sub)contractor and does not apply to persons working for a subcontractor of this subcontractor. Where there is a chain of subcontractors, each company in the chain should obtain the required data concerning the persons working for its direct contractor. If all companies meet their obligations and obtain the required information, the right to work requirements will be met, unless a company provides incorrect information.

A Decree determining when the new legislation will enter into force is still required.

Note that this legislative change only applies to the Flemish region and not in Brussels or Wallonia.

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