Contractor Liability for Employment of Illegal Third-Country Nationals by a (Sub)Contractor

In the Flemish Region, the liability of contractors regarding the employment of illegal third-country nationals by a (sub)contractor is being tightened. On October 27, 2023, the Flemish Parliament approved and enacted the draft decree amending the law of April 30, 1999, concerning the employment of foreign workers. This decree introduces an increased due diligence obligation for contractors who use a direct contractor employing third-country nationals (non-EEA or Switzerland).

Regarding the current legal framework: in 2013, a system of joint liability was introduced in subcontracting and illegal employment, with the possibility of criminal sanctions. Contractors could exclude their liability at that time by possessing a written statement from the direct contractor declaring that no third-country nationals residing illegally would be employed.

Why is there a need for tightening? Despite the existing regulations, the legislator believes there is still potential danger for exploitation and abuse in the employment of third-country nationals in all sectors. Current employment structures in various member states complicate inspection controls, and inspection services do not always have appropriate tools for effective action.

What's new? The new legal framework aims not only to protect workers from third countries but also self-employed individuals from these countries. The existing regulation is supplemented with a due diligence obligation for contractors who rely on a direct contractor employing third-country nationals. This obligation is activated upon the appointment of the direct contractor and requires the provision of certain data or documents, including identification and contact information, personal data, information about residency status, and data on the employment of foreign workers and self-employed individuals.

It is the responsibility of the contractor to exercise additional supervision. If the direct contractor does not provide the required information, the contractor must request that this information be supplied. If the direct contractor refuses, this must be immediately reported to the social law inspectors.

When does the new regulation come into effect? The draft decree indicates that the specific data to be provided by the direct contractor, as well as the further modalities thereof, are determined by the Flemish Government. The date of entry into force is also determined by the Flemish Government, which means that one must look out for the publication of the required implementing decision.

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