Sofie Vandermeersch participates in the IR Global Employment Working Virtual Series Home Work: The challenges of cross border remote working

The past year has witnessed a huge remote working experiment for many of the world’s businesses and their employees as a result of Covid-19. And, for many, these new working practices have become hugely complex depending on where in the world business owners and employees have suddenly found themselves. Almost overnight, people are in uncertain territory regarding issues involving employment law, tax, social security and pensions, to name just a few.

FOREWORD BY EDITOR, ANDREW CHILVERS

What are the consequences for a business when an employee works from home on a semi-permanent basis, transferring their residence to another country?

In Belgium as throughout the EU, the basic principle is that the social security system is determined by the country in which you work, and the tax system by the country where you live. Suppose I live in Belgium, close to the border with France, and I work in France for a French company. Leaving aside the pandemic and how that has changed remote working, let’s say I commute every day into France for my job, or maybe worked only one day at home. That would mean that I’m socially insured in France and will have pension rights in France, but for tax purposes I’m actually in Belgium because that’s where I live. Regarding social security benefits such as health care and child benefits and employment allowance should I lose my job, they would be exported to my country of residence from France. As a result, I pay in France, but I get the benefits in Belgium. That was the situation up to 2020 before the pandemic. After that everything changed. Everybody had to work from home, which means that I’m now living and working in Belgium. Because of that my social security enrolment changes. I have to be socially insured in Belgium and my French employer is obliged to organise a payroll in Belgium. But not many have done that to date because at first, it seemed to be a temporary situation and it’s very complex and fairly radical to do so. But remote working seems to be here to stay, even without a pandemic. As soon as you work 25% of your working time in your country of residence, the social security system of your country of residence becomes applicable. Employees generally prefer that. Also from a government or inspection point of view, the individual employment situation becomes all of a sudden much easier to manage, because both tax and social security positions are now united in one country. I do believe that companies that used to be reluctant to comply, will have no choice but to adapt to this new reality of structural remote working.

Are there specific rules applicable to remote working in your country? How do they apply to domestic and foreign companies?

Remote working in Belgium has always been treated rather poorly. Remote working has not been contained in the law, but only in collective labour agreements. But the rules in these collective labour agreements are binding. They are also binding for foreign employers who are active in Belgium, even with employees subject to a foreign labour law. It’s important to understand that due to the application of international private law and the Rome I-Treaty, binding local law prevails. That’s something to keep in mind when foreign companies employ people in Belgium. A basic principle of these remote working rules has always been that it has to be voluntary, so it could not be imposed by the employer or enforced by the employee. And the details of how it would be organised have always been left to negotiation between employers and employees or their representatives or trade unions. The results of these negotiations could be included in collective labour agreements, in company policies or even in the individual labour agreement between employer and employee. The rules have always been very diverse. But then the pandemic came along and remote working became mandatory. Until very recently, there were no arrangements according to Belgium labour law. It was assumed that the rules issued by the government in fighting COVID-19 were a sufficient legal basis to impose remote working. This changed on January 26 this year. A new, generally applicable collective labour agreement was concluded, that finally laid down the rules of remote working for companies that had not yet made their own arrangements on this subject. As a result, things are changing as we speak and we need to look more closely on how that is going to work going forwards.

Will companies have to provide new policies for remote working? Will this include providing employees with the necessary equipment and reimbursing costs related to remote work?

In the new regulations, the rule is that if the employee uses his own equipment, an agreement must be made about reimbursing the costs of the software, use, maintenance, depreciation of the computer and so on. But it’s not defined who should bear the costs, only that arrangements should be made. Broadband in your house, for example. If is not strong enough at your home, then you should make arrangements on how to deal with it and work out who will pay for it. Even before this new collective agreement, it was already quite clear that in the end, it is the responsibility of the employer to bear all costs relating to remote working. Whether the cost is borne directly by the employer or is reimbursed afterwards, does not matter. The preexisting collective agreements on structural remote working stipulated it this way, the welfare regulations regarding health and safety too.

And over all, it is a general rule in Belgian labour law that the employer is obliged to provide in the necessary tools and materials needed to carry out the work