An important innovation has been introduced in the area of joint and several liability in the case of the employment of third-country nationals without a residence permit: the minimum due diligence assessment. This has an important impact on the construction sector. Contractors will henceforth be held liable if they fail to request certain information from their direct subcontractor or if they fail to inform the social inspection that they have not obtained the requested information.
In the summer of 2022, it was discovered that victims of trafficking in human beings were illegally employed on a major construction project by the chemical company Borealis in the port of Antwerp.
However, since 2017, every link in the chain of contractors can be approached in the Flemish region for infringements of illegal employment, from the end-subcontractor to the client (Art. 12/4 Foreign Workers’ Employment Act). Unfortunately, in practice, this chain liability is often eroded by a simple escape clause in which the subcontractor recognises that they do not employ persons without a residence permit.
Therefore, the Decree of 23 October 2023 introduces a so-called ‘duty of care’, which forces the main contractors to request certain information from their direct subcontractors. If they fail to do so, they will themselves be liable.
For direct subcontractors, a checklist of documents (including a valid residence permit in the sending country and a Limosa registration certificate) will be drawn up together with the sectors, which the subcontractor will have to make available. A detailed enumeration will be provided in a later implementing decision.
If a company finds that the information to be provided indicates illegal employment, or if the documents are not provided, it is even expected that the social inspection be notified.
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