Employing Foreign Workers On The Belgian Territory: Watch Out As From 31 March!

On 1 June 2011, the federal government signed a cooperation agreement with the regions and communities on coordination of the controls on illegal employment and social security fraud. The Act of 1 March 2013 implementing this agreement will now come into force on 31 March 2013.

The aim of the Act is better, more efficient coordination between the different inspectorates (regional and federal) with the aim of cracking down on the illegal employment of foreign workers and social security fraud. Only recently, the government have further tightened up enforcement of the law on joint liability for wages, social security and income tax for employment of foreign nationals in Belgium (see Stefan Nerinckx, Employment of illegal aliens tightened up and secondment to Belgium: joint and several liability for wages, Expat News n°6, June 2012), loans of staff (e.g. new obligations for international secondments ( HR Legal Focus of 10 January 2013), anti-abuse in respect of international social security ( HR legal Focus of 29 January 2013), and so on.

To achieve more efficient coordination of inspections, the agreement includes active exchanges of information stored on various databases (work permits are issued regionally, residence permits at federal level, etc.), organisation of joint training, multi-skill audits/inspections, etc.

Permanent cooperation and the organisation and coordination of controls is organised under the leadership of the public (labour) prosecutor.

Employing foreign workers without legal residence

In the same context, the Act of 11 February 2013 setting down the sanctions and measures for employers of illegally resident third-country nationals came into force on 4 March 2013 (Belgian Official Gazette of 22 February 2013). The act is a partial transposition of Directive 2009/52/EC of the European Parliament and the Council, which forms part of the general campaign to combat illegal migration in the EU and encourage legal migration.

Below, we summarise the main points to watch out for from the act.

1. Obligations on employers

   In general,

   the employer must examine up front whether an employee (a third-country national) is in possession of a valid residence permit the employer has to keep a copy of the residence permit available for inspection during the period of employment the employer must file a declaration/notification for commencement and termination of the third-country national worker's employment. This can be done via...