Be Aware Belgium – December 2023

The Federal Training Account: a new tool in order to monitor the right to professional training

The Act of 3 October 2022 holding various measures in relation to employment, the so-called Labour Deal Act, introduced a right for workers to receive professional training. As of 2024, a worker employed by a company counting at least 10 workers is in principle entitled to 5 days professional training per year. During 2023, the right to professional training consists of 4 days. Within companies counting between 10 and 20 workers, the right to professional training is limited to 1 day per year.

The compliance with this legislation was nevertheless difficult to monitor, as there was no registration system for days professional training and this training could also be an internal training, given by a colleague.

In order to allow workers and the government to have a better view on the precise number of days professional training a worker is entitled to, the Act of 20 October 2023 will at the latest on 1 April 2024 introduce the Federal Learning Account. Sigedis Vzw created this tool, which will be accessible at www.mycareer.be.

The Federal Learning Account will register the following daga:

• The identification details of the worker.
• The percentage of the full-time working time. The abovementioned number of days professional training apply indeed only to full-time workers and is reduced pro-rata for part-time workers.
• The applicable joint committee, as these can sign a collective bargaining agreement increasing or decreasing the number of days training a worker is entitled to.
• The number of days training the worker is entitled to during the calendar year involved.
• The details in relation to the days training already attended.
• The remaining balance of the days training.

The employer should insert the data in the tool.

Once the Federal Learning Account will be operational, it will become easy to check whether employers granted the required number of days professional system, as the social inspection can simply obtain a list of workers who attended less than the required number of days from the data included in the Federal Learning Account. The Act of 20 October 2023 concerning the creating and the management of the Federal Learning Account therefore stipulates that Sigedis will each quarter prepare a list of the workers whose employer failed to include the necessary data in the Federal Learning Account, or who have not attended the minimum number of days training during the year. These employers will in a first place receive a notice, with the request to rectify the shortcomings within 30 days. If they do, nothing happens. If they fail to rectify the issue, the list issued for the next quarter will again include this employer.

The current legislation does indeed not stipulate a specific sanction if an employer would fail to offer the required number of days professional training. The Act of 3 October 2022 stipulated the possibility of converting the unused balance of training days into a benefit in kind, but up to this moment, the Royal Decree necessary for determining the precise modalities of this was not yet promulgated.

As of 1 April 2024, companies with at least 10 workers must register the professional trainings of their workers, so the compliance with the minimum number of days professional training the worker is entitled to can be checked automatically.

 

Increased liability for violations of the right to work by subcontractors

A worker who is not a national of a Member State of the European Union is in principle only entitled to work in Belgium after their employer obtained a work permit, although there are some exceptions to this requirement. If a person would work in Belgium without being entitled to do so, the sanction of level 4 in the sense of the Code on Social Criminal Law can be imposed on the employer or the physical persons having decision making power within the organisation of the employer. This corresponds with a prison sentence of maximum 3 years and/or a fine of EUR48,000 per worker involved. For companies, the prison sentence is converted into a fine of maximum EUR576,000. The employer can also have to pay the costs of the (forced) repatriation of the worker to his or her country of origin.

Violations of the legislation on the right to work are often committed by contractors or subcontractors, in which case these sanctions apply to the company that is the employer of the worker involved. There are nevertheless also risks for the principal or the main contractor if a subcontractor violates the legislation on the right to work.

There is in the first place the risk of being considered an accomplice of the (sub)contractor on the basis of general criminal law. If the public prosecutor can indeed establish a company knew its (sub)contractor was violating the legislation on the right to work, but nevertheless continued having recourse to this (sub)contractor, then this company is considered an accomplice and can be imposed the same sanctions as the employer.

Article 12/4 of the Act of 30 April 1999 concerning the employment of foreign workers stipulates moreover a liability of contractors for violations on the right to work by their subcontractors. This liability remained in practice nevertheless rather theoretical, as the legislation stipulated the liability for infringements by (sub)contractors did not apply if the contractor signed an agreement whereby the subcontractor confirmed in writing that the legislation on the right to work would be respected. Unless if the public prosecutor could establish the contractor was aware of the violations, only the subcontractor could in practice be held liable, as nearly every contractor could submit such a written statement.

This rule is nevertheless fundamentally changed in the Flemish region by means of a Decree of 27 October 2023, as the conditions to be met in order to avoid being liable for infringements by a subcontractor will become far more restrictive.

It will still be required to obtain a written statement by every direct subcontractor confirming this subcontractor will comply with the legislation on the right to work and will thus only have recourse to persons who are entitled to work in Belgium. A new condition is, however, added before a contractor can avoid being liable for violations by a direct subcontractor. The contractor must indeed be able to establish “appropriate diligence” was respected in order to avoid violations of the right to work by this direct subcontractor. The new legislation does not define what “appropriate diligence” precisely means, but adds that this requires at least that the direct subcontractor should provide the identification data of all workers or self-employed persons working for this direct contractor. This data should both cover the right of access to the Belgian territory and the right to work in Belgium. An implementing Decree should still determine more in detail the information to the shared.

If the direct subcontractor would fail to provide this information, the main contractor should immediately inform the social inspection.

There is only an obligation to request this data in relation to the persons working for a direct (sub)contractor, hence not in relation to persons working for a subcontractor of this subcontractor. If there is a chain of subcontractors, each company in the chain should require the data concerning the persons working for its direct contractor. If all companies respect their obligations and effectively obtain the required information, the legislation on the right to work will thus in principle be respected, unless of course if a company would provide incorrect information.

A Decree should still determine when this new legislation enters into service in Flanders.

As the change concerns a legislative change by means of a Flemish Decree, it only applies in the Flemish region. Nothing changes in the Brussels region or in Wallonia.

In the Flemish region, contractors must now request the identification details of all persons working for a direct subcontractor in order to verify their compliance with immigration law and the right to work.