Employment law update

Conversation between employer and employee secretly recorded by the latter is accepted as evidence in court 

An employee whose contract was terminated by the employer in 2012 claimed the payment of commissions in arrears for years 2010 and 2011. To prove his allegations the employee referred to an annex to his employment contract and to a recording of a conversation with his employer, during which the latter had admitted that the commissions in arrears were due and proposed to postpone the payment. 

As a matter of principle, recording a conversation without the consent of all participants is unlawful. 

However, the Court applied the “Antigone“-case law, stating that evidence that is unlawfully obtained is only to be disregarded by the court if (i) the unlawfulness affects the reliability or (ii) if the right to a fair trial would be affected or (iii) if the evidence was obtained by violating a rule that is sanctioned with absolute nullity. The Court reasoned that none of the three conditions applied and that the evidence could therefore be accepted. The employer was convicted to the payment of the commissions in arrears. 

This judgment teaches us that an employer should not only be careful in his dealings in writing with his staff, but also in the oral contacts.

Social Elections 2016 

The next social elections will take place between 9 and 22 May 2016. As mentioned in our previous newsletter, during these elections employees may choose their representatives for the works council (in companies with 100 employees or more) and/or the health and safety committee (in companies with 50 employees or more). The election procedure starts in December 2015 and lasts 150 days. 

During the procedure, companies subject to the social elections regulations must share information with the Ministry of Work. For the first time, during these social elections the Ministry will communicate with the companies via a secured electronic mailbox (“e-Box”).

For each legal entity an e-Box is reserved and can be activated via registration on the portal of the Belgian Social Security. If your company already has an active e-Box, no further action is required until May 2015, when additional instructions will be shared. If your company is not yet registered on the portal of the Social Security, please register and follow the procedure at www.socialsecurity.be.

Joint Committee 218 replaced by Joint Committee 200 

As from 1 April 2015, Joint Committee 218 has been abolished. From that date on, Joint Committee 200 is competent for workers who mainly perform intellectual work and their employers for whom no other specific Joint Committee is competent. 

Be assured that this change will have no real effects on those companies who used to belong to Joint Committee 218. The transfer to Joint Committee will be done automatically, so no formalities are required. Also, a collective bargaining agreement (“CBA”) shall be closed in JC 200. This CBA will adopt at the level of Joint Committee 200 all CBAs that existed at Joint Committee 218. The rights and obligations of the relevant employees will not be impacted by this change.

The Limosa declaration obligation incumbent to the end user in Belgium is compliant with EU law 

Belgian law requires that prior to the posting of an employee to Belgium by a service provider established in another Member State, his employer must make a Limosa declaration to the National Office for Social Security in Belgium. Said employer will get a Limosa certificate of receipt in return. If the employee seconded to Belgium is unable to submit proof of the declaration, Belgian law renders the end user liable to make that Limosa declaration himself. Failure to comply is criminally sanctionned. 

This obligation of declaration imposed on the end user has been challenged by a Belgian company.

In this matter, the Europe Court of Justice (ECJ) recently ruled that although said obligation constitutes a restriction of the freedom to provide services, it is justified for ensuring the compliance with the objectives of protecting posted employees and with the combating of social security fraud. 

Action for companies working with posted employees: 

In your capacity of end user in Belgium, you must check whether all employees in secondment from abroad in your company do have a Limosa certificate. 

If they are unable to provide such certificate, these are some options to consider:

a) refuse to have the seconded employees work in your company premises; and/or
b) include provision(s) in the agreement with your contractor under which the latter: i) undertakes to make all due formalities regarding the Belgian social security authorities; ii) will be fully liable in case of non-compliance with his obligations and will fully indemnify your company in case of any claim, loss or damages; and/or
c) last but not least, your company shall make itself the Limosa declaration without delay to the Belgian social security authorities to mitigate the risks related to your contractor’s default.