Obligations and concerns of working with foreign subcontractors

Working effectively with foreign subcontractors in the industrial sector requires an in-depth approach that takes into account the complexities and risks inherent in this collaboration. It brings several challenges and responsibilities, especially in light of new legal requirements. In this article, we explore the key obligations and concerns that contractors need to consider in order to stay compliant and minimize risks.

Vander Elst exemption, a solution with conditions

Tight labor market forces companies to look beyond national borders. The Vander Elst exemption, based on the ruling of the Court of Justice of the European Union (Case C-43/93), allows EU companies to temporarily employ workers from third countries (outside the EEA and Switzerland) who are legally employed in an EU member state in other EU member states without additional work permits. This is possible under the conditions that the employees work legally in the home member state and the employment in the other member state is temporary. In Belgium, this exemption applies nationwide, and companies must follow national procedures such as the Limosa notification to remain compliant.

Chain liability

Contractors working with subcontractors from third countries should be aware of their liability in the event of illegal employment. Currently, contractors can exempt themselves from liability by obtaining a written declaration from the subcontractor stating that it does not employ illegal immigrants. However, liability revives if social inspection proves that the contractor had knowledge of the illegal employment.

New duty of care The Flemish government has introduced additional obligations to strengthen chain liability. This duty of care requires contractors to request additional documents from their direct subcontractors, such as: – Identification and contact details of the subcontractor. – Personal data of foreign employees and self-employed workers. – Expected: proof of identity, residence permits, labor cards, and Limosa – Residence and work permits. Although the exact requirements are yet to be determined, it is expected that proof of identity, residence permits, labor cards, and Limosa notification will be necessary. Although Flanders and Wallonia both have rules on chain liability and duty of care to prevent abuse in the employment of foreign workers, there are some differences in the stringency and specific requirements:

Level of strictness

Flanders Generally more stringent with additional duties of care. Specific checklists and documents are required to ensure compliance. Wallonia Also strict, but possibly less detailed in certain requirements. Emphasis is on similar principles, but with some differences in implementation.

Documentation requirements

Flanders Specific requirements for requesting subcontractor identification and contact information. Emphasis on need for personal data of foreign workers, including residence and work permits. Implementation of Limosa notification strictly enforced. Wallonia Also requires subcontractor identification and contact information. Focus on obtaining residence and work permits, but possibly less specific requirements for additional documents such as labor cards.

Germany

Arbeitnehmer-Entsendegesetz (AEntG) This regulates the employment of foreign workers and places responsibility on the contractor to check work permits, residence statuses, and other relevant documents.

France

Loi Macron Companies hiring foreign workers must meet strict documentation requirements, including work permits, residence documents, and compliance with minimum wage rules.

United Kingdom

Immigration, Asylum and Nationality Act 2006 Employers must verify the residency status and work permits of foreign workers and are responsible for compliance with immigration laws.

Considerations when working with foreign subcontractors

In addition to the Vander Elst exemption, contractors must consider other administrative obligations. For example, an employee-foreigner must be able to present a Schedule 3 or Schedule 15/A card for employment on Belgian territory. A digital database is being developed according to the “only once” principle, which will ensure that documents already held by the government do not have to be requested again. If the subcontractor does not provide the necessary data, the contractor must give it one reminder and, if the documents are not provided, inform the inspection. The duty of care does not include a legal obligation to check, but it does require checking the validity of documents such as residence and work permits.

A Smart Approach with Onyx One

Working with foreign subcontractors requires a careful approach to meet legal obligations and ensure chain liability. Implementing these documentation processes can be complex and time-consuming. Fortunately, Onyx One offers a solution that simplifies and automates this process. We would be happy to tell you more about it