Newsletter 2024 – 06

2 New rules for subcontracting in the construction, meat and moving sectors

Act of 15 May 2024 amending social criminal law and various labor law provisions, BS 21 June 2024

for subcontractors in the construction, meat and moving sectors An important change is on the horizon

By January 1, 2025, at the latest, a ban will come into effect on a subcontractor from accepting work from a (main) contractor and then subcontracting it entirely to another (sub)contractor. It is also prohibited for a subcontractor to retain sole responsibility for coordinating the work. Doing so constitutes a level 4 offense (with an increased maximum fine).

This prohibition does not apply to the (main) contractor, defined in the law as “anyone who directly undertakes towards a client to perform or have performed work for the benefit of this client in exchange for payment”, in other words, the direct contracting party of the client.

The impact cannot be underestimated. The business model of many (construction) companies is precisely to immediately outsource accepted work to third parties and/or to only take on the coordination. Their raison d'être disappears (insofar as they are not the main contractor). This new provision aims to better combat social fraud and better protect employees. In the past, structures were set up (via an intermediary contractor) to avoid their own obligations.

In the moving sector, the subcontracting chain is also being restricted. By January 1, 2025 at the latest, this chain may consist of no more than three levels. In this sector, joint and several liability for the payment of wage and social security debts of the subcontractor is also being introduced, similar to the arrangement already in force in the construction sector. Attendance will also have to be recorded (“Checkin@work”).

Specific questions? Contact us.

Roy Melis, lawyer
roy.melis@mploy.be

3 Jurisprudence – Be careful with cafeteria plans…

Cass. June 10, 2024, www.juportal.be

The supplementary child benefit awarded under a cafeteria plan intended to optimize the salary package is not necessarily exempt from social security contributions.

The RSZ Act stipulates that contributions are calculated based on wages as defined in the Wage Protection Act. This Act stipulates that allowances, which must be considered supplementary to the benefits granted under the various branches of social security, are not considered wages.

The compensation must aim to compensate for the loss of professional income or the increase in costs resulting from the materialisation of one of the risks covered by the various branches of social security.

Only this objective of providing protection against one of the social risks, in addition to the protection provided by social security, justifies exempting this compensation from social security contributions.

The fact that the compensation increases net wages and the employee bears the social risk and the compensation is not excessive is not sufficient to conclude that the compensation is intended to cover the social risk.

In the judgment under appeal, the Brussels Labor Court found that the employer had granted compensation equal to the allowances to six employees receiving family allowances. This was part of a cafeteria plan designed to "optimize" wage policy. The plan offered employees a choice of various benefits and was, of course, designed to reduce social security contributions on wages.

If that had not already been the case following a judgment of the Court of Cassation of 25 March 2019 – in the same case, by the way – it is now clear that a supplement to child benefit as compensation for a wage reduction or granted within the context of a wage optimisation system, such as can occur in a cafeteria plan, does not meet the legal conditions for an exemption from social security contributions.

Ludo Vermeulen, Partner lawyer
ludo.vermeulen@mploy.be