The continuing tightness of the labor market is forcing more and more contractors to use foreign subcontractors. However, such collaborations come with a complex set of legal pitfalls and risks that, if not covered, can cost you dearly. Again, good agreements make good friends.
In short, foreign subcontractors who deploy their personnel on a Belgian site are obliged to apply the main Belgian working conditions when they are more advantageous than the working conditions in the country of origin. In concrete terms, this means that the subcontractor's foreign employees will often be entitled to Belgian (minimum) wages, be subject to Belgian working hours legislation, have to be granted loyalty stamps, and so on. If your subcontractor fails to apply our terms of employment, you too can be sued. Make sure that you are contractually covered for this.
Prohibited posting of personnel
Make sure that you only work with subcontractors who are truly and fully independent. They are responsible for their own material, have their own authority and obligations towards their personnel and do not merely act as a conduit for labor. The lending of personnel is in principle forbidden. In the worst-case scenario, you will share in the consequences.
Joint and several liability for tax and social security debts
If the subcontractor has to withhold NSSO contributions and/or taxes for its personnel in Belgium, check that the subcontractor has no outstanding debts before starting the cooperation and before making payment of its invoices. If that is the case, you must pay part of the invoice amount directly to the NSSO or the tax authorities. If you do not, you can be held jointly and severally liable for these debts.
A1 certificate on secondment
Foreign workers posted to Belgium within the EU can generally continue to pay their social security contributions in their country of origin. To do so, they must have a valid 'posting form A1′ and keep it at the job site. This form proves that the employee does not have to pay social security contributions in Belgium because he already does so in the country of origin. So beware of workers who cannot present an A1 form, chances are they are working unregulated.
Finally, each subcontractor must comply with various registration and reporting obligations: the LIMOSA declaration before starting work in Belgium, the declaration of certain works or construction sites, the registration of the presence of personnel on the site, etc. It is therefore highly recommended to make the necessary arrangements before working with a foreign subcontractor. Having a watertight cooperation contract drawn up is certainly no superfluous luxury, given that the penalties for violations of the applicable legislation are anything but lenient. We will gladly guide you through this complex tangle of rules and obligations.