ATTRACTING AND PROTECTING THE RIGHTS OF SEASONAL

ATTRACTING AND PROTECTING THE

RIGHTS OF SEASONAL WORKERS IN BELGIUM

January 2021

Authors: Natali Afsar and Jo Antoons

(Fragomen Global LLP, Brussels)

This report was funded by

the European Union's Asylum

Migration and Integration Fund

The European Migration Network (EMN) is coordinated by the European Commission

with National Contact Points established in each EU Member State plus Norway.

The European Migration Network Belgium is a multi-institutional entity com-

posed of experts from the Immigration Ofce, the Ofce of the Commissioner

General for Refugees and Stateless Persons (CGRS), Myria - the Federal

Migration Centre, and Fedasil - the Federal Agency for the Reception of Asy-

lum Seekers. It is coordinated by the Federal Public Service Home Affairs.

EDITORIAL STAFF

Jessy Carton, Camille De Brabant-Bibi, Bram Devos,

Martine Hendrickx, Isabelle Raes, Bieke Vens

RESPONSIBLE PUBLISHER

Philippe Rosseel

EMN BELGIUM

Federal Public Service Home Affairs

1 Rue de Louvain / Leuvenseweg 1

1000 Brussels

BELGIUM

www.emnbelgium.be

BELGIAN STUDY AND EU COMPARATIVE STUDY

Belgian report:

This is the Belgian contribution to the EMN Study “Attracting and protect-

ing the rights of seasonal workers in the EU”. Other National Contact Points

(NCPs) produced a similar report on this topic for their (Member) State.

Common Template and Synthesis Report:

The different national reports were prepared on the basis of a common

template with study specications to ensure, to the extent possible, com-

parability.

Synthesis report:

On the basis of the national contributions of 25 NCPs, a Synthesis Report

was produced by the EMN Service Provider in collaboration with the Euro-

pean Commission and the EMN NCPs. The Synthesis Report gives an

overview of the topic in all the (Member) States.

Scope and aim of the study:

The study primarily covers third-country nationals who enter and reside in

Belgium for the purpose of seasonal work in the framework of the Seasonal

Workers Directive 2014/36/EU. The study reects the most recent develop-

ments in terms of legislation and policy on seasonal work in Belgium, largely

focussing on 2019. Developments in earlier years are also considered if rel-

evant.

Available on the website:

The Belgian report, the Synthesis report and the links to the reports of the

other (Member) States are available on www.emnbelgium.be.

TABLE

OF CONTENTS

TABLE OF CONTENTS

1. INTRODUCTION 9

2. PROFILE OF SEASONAL WORKERS 17

2.1. Admission of seasonal workers from third countries under the Directive 18

2.2. Sectors covered by the Seasonal Workers Directive 19

2.3. Personal characteristics of seasonal workers 20

2.4. Salary of seasonal workers 21

2.5. Average duration of stay of seasonal workers 23

2.6. Seasonal work and irregular migrants 23

3. POLICIES AND PROCEDURES FOR SEASONAL WORK IN BELGIUM 25

3.1. Importance of seasonal workers for the labour market 26

3.2. Fees and duration of the procedure 28

3.3. Labour market test 29

3.4. Facilitation of re-entry 29

3.5. Change of status 30

3.6. Relevant actors in promoting seasonal work 31

3.7. Information provided to employers 32

4. PROTECTION AND RIGHTS OF SEASONAL WORKERS 35

4.1. Equal treatment of seasonal workers 36

4.2. Access to adequate housing 38

4.3. Key actors ensuring the protection of rights 39

4.4. Complaints against employers 40

4.5. Sanctions against employers 40

4.6. Other mechanisms ensuring the protection of rights 41

5. CONCLUSIONS 43

6. ANNEXES 47

A ANNEX A: References 48

B ANNEX B: Studies and reports

of the Belgian contact point of the EMN (2009-2018)

INTRODUCTION

ATTRACTING AND PROTECTING THE

RIGHTS OF SEASONAL WORKERS IN BELGIUM

1110

2019.

The German-speaking Commu-

nity adopted some specic measures by

Decision of 23 May 2019.

The Flemish

and the Walloon Regions decided that

the agriculture, the horticulture and the

hospitality sectors will be covered by the

Directive. In the German-speaking Com-

munity, the agriculture and the hospitality

sectors are covered by the Directive. The

Brussels region limited the coverage of

the Directive to the agriculture sector.

The Seasonal Workers Directive entered

into force in Belgium on 1 September

2019.

On 30 October 2019, the Com-

mission withdrew its action against

Belgium before the European Court of

Justice for failing to implement the Sea-

sonal Workers Directive.

Although formally the Directive entered

into force on 1 September 2019, a piece

of the regulatory puzzle with respect to

stay and residency was missing. That

nal piece was only implemented at Fed-

eral level with the Royal Decree of 23

March 2020.

At the time of this study, only the Flemish

Region had issued work authorisations

to seasonal workers under the Directive

(in total, 110 seasonal workers had been

admitted between the Directive’s imple-

mentation on 1 September 2019 and 27

May 2020). No seasonal workers had

been admitted in Wallonia, Brussels or

the German-speaking Community under

the Directive since 1 September 2019.

As regards the situation before the entry

into force of the Directive on 1 Septem-

ber 2019, there was no specic scheme

in place for workers from third countries

coming to Belgium to perform seasonal

work. Seasonal workers would in prin-

ciple fall within the ’general’ category of

third-country workers, i.e. workers from

third countries subject to obtaining a

work permit called ’permit B’, which was

granted for a period of employment up

to maximum 12 months, linked to a spe-

cic employer, and contingent upon a

labour market test. The Flemish Region

mentioned that in practice, before the

implementation of the Directive, work

authorisations for the purpose of season-

al work were mostly granted to workers

falling within another category, namely

third-country nationals with a long-term

resident status in another EU Member

State coming to perform an activity for

which the regional authority considers

there is a shortage of workers.

Only the Flemish Region could provide

statistical data related to work permits

obtained for seasonal work before 1 Sep-

tember 2019. No such data was kept by

Until 2014, Belgium’s federal gov-

ernment was responsible for the

development of all immigration-relat-

ed legislation and policies, including the

legislation and the policies for admitting

seasonal workers from third countries.

On 1 July 2014, the employment-based

immigration policies were transferred to

the regions: the Flemish, the Walloon and

the Brussels-Capital Region.

Belgium’s

regional governments hence became

competent to develop their own work

permit policies. Nonetheless, the federal

government kept a role in the process.

The Federal Public Service Home Affairs,

through the Immigration Ofce, remains

responsible for the issuance of residence

permits to third-country nationals.

The context of this transfer of competence

and its practical implementation, together

with Belgium’s complicated state struc-

ture and political landscape made that

the Single Permit Directive (2011/98/

EU) was only implemented in Belgium in

January 2019, long after the deadline of

25 December 2013. The implementation

of the other EU directives related to eco-

nomic migration, including the Seasonal

Workers Directive (2014/36/EU) (herein-

after ‘the Directive’) was therefore equally

delayed. In November 2016, the Com-

mission sent a letter of formal notice to

Belgium, followed by a reasoned opinion

in July 2017. On 19 July 2018, as the Bel-

gian government had still not transposed

the Directive, the European Commission

introduced an infringement procedure

against Belgium before the European

Court of Justice for failing to fully imple-

ment the Directive and proposed a daily

penalty of €49 906,50.

Only at the end of 2018 Belgium initi-

ated the implementation process. On

6 December 2018, the regions and the

federal authority concluded an Execut-

ing Cooperation Agreement dening the

common framework for the transposition

of the Directive in Belgium (hereinafter

‘the Executing Cooperation Agreement’).

This general framework was transposed

into the Belgian Immigration Act (herein-

after ‘the Immigration Act’) by a federal

law adopted on 5 May 2019.

In paral-

lel to this common framework agreed on

and laid down in the Immigration Act,

the regions have in turn adopted a Deci-

sion implementing the Directive. Each

Decision refers to the common rules laid

down in the Immigration Act and sets

out the specic measures applicable

in their region, including to which eco-

nomic sector(s) the provisions will apply.

The Flemish Region adopted its Deci-

sion on 7 December 2018,

the Brussels

and Walloon Region have each adopt-

ed their respective Decisions on 16 May

INTRODUCTIONINTRODUCTION

6. Decisionof 16 May 2019 of theGovernmentof the Brussels-Capital Region amending the Royal Decree of 9 June 1999 imple-

menting the Law of 30 April 1999 relating to the occupation of foreign workers, with regard to work authorisation for activities

carried out within the framework of an intra-group transfer, seasonal worker, researcher, trainee, volunteer, or within the frame-

work of the European Blue Card, Belgian Ofcial Gazette, 4 June 2019; Decision of 16 May 2019 of the Walloon Government

relating to the occupation of foreign workers and repealing the Royal Decree of 9 June 1999 implementing the Law of 30 April

1999 relating to the occupation of foreign workers, Belgian Ofcial Gazette, 19 June 2019.

7. Decision of 23 May 2019 of the German-speaking community amending the Royal Decree of 9 June 1999 implementing the Law

of 30 April 1999 relating to the occupation of foreign workers, Belgian Ofcial Gazette, 8 July 2019.

8. Executing Cooperation Agreement of 28 May 2019 between the federal state, the Walloon region, the Flemish region, the Brus-

sels-Capital region and the German-speaking community implementing the Cooperation agreement of 2 February 2018 be-

tween the federal state, the Walloon region, the Flemish Region, Brussels-Capital Region and the German-speaking Community

on the coordination of policies for the granting of work permits and the granting of residence permits, as well as norms relating to

the employment and stay of foreign workers, Belgian Ofcial Gazette, 18 July 2019.

1. On 1 January 2016, the Walloon Region transferred its employment-related competences to the German-speaking Community.

2. TEuropean Commission, Legal migration: Commission refers Belgium to the Court of Justice for failing to provide common rules

for non-EU seasonal workers, 19 July 2018, https://ec.europa.eu/commission/presscorner/detail/en/IP_18_4490; European Com-

mission v Kingdom of Belgium - Case C-676/18.

3. Executing Cooperation Agreement of 6 December 2018 between the federal state, the Walloon region, the Flemish region, the

Brussels-Capital region and the German-speaking community implementing the cooperation agreement of 2 February 2018 be-

tween the federal state, the Walloon region, the Flemish Region, Brussels-Capital Region and the German-speaking Community

on the coordination of policies for the granting of work permits and the granting of residence permits, as well as norms relating to

the employment and stay of foreign workers, Belgian Ofcial Gazette, 18 July 2019.

4. Law of 5 May 2019 modifying the Law of 15 December 1980 regarding the entry, residence, settlement and removal of foreign

nationals, Belgian Ofcial Gazette, 22 August 2019.

5. Decision of 7 December 2018 of the Flemish Government implementing the Law of 30 April 1999 on the employment of foreign

workers, Belgian Ofcial Gazette, 21 December 2018.

1312

the Walloon Region, the Brussels region

and the German-speaking Community.

As a result, this study will mostly provide

an overview of the legislative transposi-

tion of the Directive into Belgian law with

a limited insight on the practical aspects

and consequences of the measures

adopted.

It is worthwhile stating that Belgium

does not rely on seasonal workers from

third-countries to ll its labour mar-

ket needs. The majority of the seasonal

workers in Belgium come from other EU

Member States, mainly Bulgaria, Poland

and Romania. As a result, no specif-

ic measures are or have been in place

to attract seasonal workers from third

countries.

INTRODUCTION INTRODUCTION

IMPACT OF COVID-19 ON SEASONAL WORK IN BELGIUM

As a result of the Covid-19 outbreak, Belgium closed its borders to all

non-essential travel. However, the agricultural and horticultural sectors

were declared to be essential sectors,

and consequently, the govern-

ment decided to authorise the entry of seasonal workers in the country to

avoid labour shortages during the upcoming harvest seasons.

In practice,

however, it was reported that seasonal workers initially faced issues with

entering the country, on the one hand due to the border closure of other

countries such as Germany and Hungary, and on the other hand as a result

of miscommunications with the Belgian border security ofcers.

To counter this problem, the Federal Public Service Employment, Labour

and Social Dialogue

issued a template certicate for seasonal workers

coming to Belgium to perform seasonal work. This document, to be pre-

sented as proof for seasonal workers crossing the border, was translated

into Romanian, Polish, Bulgarian and Hungarian. In addition, on 30 April

2020, a government communication

was sent to border controllers and

embassies to remind them that seasonal workers were allowed to travel to

Belgium to work.

On 9 April 2020, the federal government adopted several measures by

Royal Decree in order to respond to the shortage of seasonal workers in the

agriculture and horticulture sectors resulting from the Covid-19 outbreak.

From 1 March 2020, seasonal workers working in the agriculture and the hor-

ticulture sectors were allowed to work twice the number of days per year they

would normally be allowed to under the seasonal work scheme applicable in

these sectors: 60 days instead of 30 in the agriculture sector, 130 days instead

of 65 in the horticulture sector, and 200 days instead of 100 in some specic

9. Royal Decree of 23 March 2020 modifying the Royal Decree of 8 October 1981 implementing the Law regarding the entry,

residence, settlement and removal of foreign nationals, Belgian Ofcial Gazette, 7 May 2020.

10. Art. 9 20° of the Royal Decree of 9 June 1999 implementing the Law of 30 April 1999 relating to the occupation of foreign

workers, Belgian Ofcial Gazette, 26 June 1999.

11. This study only discusses Covid-19 measures taken up until June 2020.

12. Ministerial Decision of 3 April 2020 modifying the Ministerial Decision of 23 March 2020 on emergency measures to limit

the spread of the Covid-19, Belgian Ofcial Gazette, 3 April 2020.

13. Art. 20 Decision of 16 May 2019 of the Walloon Government relating to the occupation of foreign workers and repealing the

Royal Decree of 9 June 1999 implementing the Law of 30 April 1999 relating to the occupation of foreign workers, Belgian

Ofcial Gazette, 19 June 2019 ; Art. 23 Decision of 7 December 2018 of the Flemish Government implementing the Law of

30 April 1999 on the employment of foreign workers, Belgian Ofcial Gazette, 21 December 2018.

14. Art. 29 Decision of 23 May 2019 of the German-speaking community amending the Royal Decree of 9 June 1999 imple-

menting the Law of 30 April 1999 relating to the occupation of foreign workers, Belgian Ofcial Gazette, 8 July 2019.

15. FR: Service public fédéral Emploi, Travail et Concertation sociale; NL: Federale Overheidsdienst Werkgelegenheid, Arbeid en

Sociaal Overleg.

16. Joint communication of 30 April 2020 by the Deputy Prime Minister and Minister of Justice, Koen Geens, the Minister of

Social Affairs and Public Health, and Asylum and Migration Maggie De Block, and the Minister of Employment, the Economy

and Consumers, Nathalie Muylle.

17. Royal Decree n. 5 of 9 April 2020 modifying certain rules applicable in the agricultural and horticultural sectors in the frame-

work of Covid-19 measures, Belgian Ofcial Gazette, 20 April 2020.

1514

INTRODUCTION INTRODUCTION

horticultural sectors. From 1 April 2020, the number of days of seasonal work

allowed in the fruit sector was also extended under certain conditions.

Under the Belgian seasonal work scheme, it is prohibited to work as a sea-

sonal worker if in the past 180 calendar days, the worker has worked as

an employed worker in the agriculture, horticulture or landscaping sector.

This rule is commonly referred to as the ‘180-day rule’. From 1 April 2020,

the 180-day rule was limited to the work carried out within one company.

In other words, a person who had worked as an employed worker in a dif-

ferent sector or for a different company in the agricultural or horticultural

sector over the past 180 calendar days was now able to work as a seasonal

worker for another company.

Even though these measures applied to all sexasonal workers, both nation-

als and non-nationals, they specically aimed at retaining foreign seasonal

workers already working in Belgium in order to meet the needs of the

agriculture and horticulture sectors in light of the harvest season for straw-

berries, asparagus, and other fruits and vegetables.

In addition to the above mentioned changes brought to the seasonal work

scheme, the federal government also took measures to temporarily suspend

the waiting period of 4 months for applicants of international protection

to take up jobs in sectors dened as essential in the context of Covid-19,

including agriculture and horticulture.

A specic measure was also taken for students working in Belgium, irre-

spective of their nationality. As a general rule, students in Belgium can

work at reduced social security contributions during the rst 475 hours of

work. After the Covid-19 outbreak however, the government decided that

the hours worked in the second quarter of 2020 would not be taken into

account. The measure applied to students working in any economic sector,

including agriculture and horticulture.

Finally, temporary tax exemption measures were adopted to support eco-

nomic “critical sectors”, including the agriculture and horticulture sectors

suffering from the shortage of seasonal workers.

18. Ibidem, see recitals.

19. Art. 3 of the Special Powers Decree n. 14 of 27 April 2020 taken in execution of Article 5, § 1, 5° of the Law of 27 March 2020

granting powers to the King in order to take measures in the ght against the spread of the coronavirus Covid-19 (II) aimed at

ensuring the proper organization of work in critical sectors, Belgian Ofcial Gazette, 28 April 2020.

20. Art. 6 of the Special Powers Decree n. 14 of 27 April 2020.

21. Art. 16 Law of 29 May 2020 laying down various urgent tax measures due to the Covid-19 pandemic, Belgian Ofcial Gazette,

11 June 2020.

PROFILE OF

SEASONAL WORKERS

ATTRACTING AND PROTECTING THE

RIGHTS OF SEASONAL WORKERS IN BELGIUM

1918

2.2.

SECTORS COVERED BY

THE SEASONAL WORKERS

DIRECTIVE

Prior to discussing the sectors covered

by the Directive, it is worth recalling that

economic migration is a regional com-

petence in Belgium. As explained in the

introduction above, the federal govern-

ment transferred its competence on

employment-based immigration poli-

cies to the regional authorities on 1 July

2014, but remained itself competent for

the issuance of residence permits.

For this reason, the regions and the federal

authority concluded an Executing Coop-

eration Agreement on 6 December 2018

dening the general framework for the

transposition of the Directive in Belgium.

The Executing Cooperation Agreement

provides that the regions should each

decide to which sector(s) the Direc-

tive applies within their jurisdiction.

The Flemish and the Walloon Region

decided that agriculture, horticulture

and hospitality would be covered by

the Directive.

In the German-speaking

Community, only agriculture and hospi-

tality are covered by the Directive.

Finally, the Brussels-Capital Region lim-

ited the coverage of the Directive to the

agriculture sector,

as the region did not

intend to attract seasonal workers from

third countries to its metropolitan area.

The region stated that it had opted for a

restrictive interpretation of the Directive

not so much to favour national work-

ers, but rather to prevent the use of the

seasonal work scheme by employers to

the detriment of other, less precarious

schemes where possible.

Before the entry into force of the Sea-

sonal Workers Directive on 1 September

2019, there was no specic scheme in

place for workers from third countries

coming to Belgium to perform season-

al work. Such seasonal workers would

in principle fall within the ‘general’ cat-

egory of third-country nationals subject

to obtaining a work permit type B. This

permit was granted for a period of

employment up to 12 months, linked to a

specic employer, and contingent upon a

labour market test.

This section discusses the proles of

seasonal workers from third countries

working and staying in Belgium. Atten-

tion is paid to the economic sectors

open to seasonal work by third-country

national workers and the personal char-

acteristics of these workers, as well as to

their minimum salaries and the average

duration of their stay. The nal part briey

explores the possible linkages between

seasonal work and irregular migration.

Recent data are provided where availa-

ble.

2.1.

ADMISSION OF SEASONAL

WORKERS FROM THIRD

COUNTRIES UNDER

THE DIRECTIVE

From the implementation of the Directive

on 1 September 2019 until 27 May 2020,

110 seasonal workers had obtained a

work authorisation in the Flemish Region

on the basis of the Directive. During this

period, no third-country seasonal work-

ers had been admitted in the Brussels

Capital Region, the Walloon Region and

the German-speaking Community.

PROFILE OF SEASONAL WORKERSPROFILE OF SEASONAL WORKERS

22. Art. 2(2) Seasonal Workers Directive.

23. Art. 14 Executing Cooperation agreement of 6 December 2018.

24. Art. 20 Decision of 16 May 2019 of the Walloon Government relating to the occupation of foreign workers and repealing the

Royal Decree of 9 June 1999 implementing the Law of 30 April 1999 relating to the occupation of foreign workers, Belgian Ofcial

Gazette, 19 June 2019 ; Art. 23 Decision of 7 December 2018 of the Flemish Government implementing the Law of 30 April

1999 on the employment of foreign workers, Belgian Ofcial Gazette, 21 December 2018.

25. Art. 29 Decision of 23 May 2019 of the German-speaking community amending the Royal Decree of 9 June 1999 implementing

the Law of 30 April 1999 relating to the occupation of foreign workers, Belgian Ofcial Gazette, 8 July 2019.

26. Art. 30/2 1° Decision of 16 May 2019 of the Government of the Brussels-Capital Region amending the Royal Decree of 9 June

1999 implementing the Law of 30 April 1999 relating to the occupation of foreign workers, with regard to work authorisation for

activities carried out within the framework of an intra-group transfer, seasonal worker, researcher, trainee, volunteer, or within the

2120

GENDER DISTRIBUTION

As regards gender distribution, data

could only be provided by the Flemish

Region. Out of the 74 seasonal workers

that were granted a work authorisation

in 2018, only 6 seasonal workers were

women, the rest of the workers were

men.

SKILLS LEVEL

At present, there are no data available

on the skills levels of seasonal workers in

Belgium, e.g. with regard to their educa-

tion or qualication level, language level

or experience as seasonal worker.

2.4.

SALARY OF

SEASONAL WORKERS

There are no data available on the aver-

age salary of seasonal workers from third

countries in Belgium.

In 2020, the minimum salary in Bel-

gium was €1 593,81 per month (based

on a 38-hour week contract). However,

specic minimum hourly salaries apply

to seasonal workers in Belgium. These

minimum hourly salaries are set by the

applicable sectorial collective labour

agreement.

In the agriculture sector, for 2020, the

minimum hourly wage for workers

including seasonal workers was €9,45.

An exception applied to workers work-

ing in the cultivation of ax and hemp

for who the minimum hourly salary was

€13,19.

In the horticulture sector, the minimum

hourly wage for 2020 varied between

€9,26 and €11,33, depending on the

sub-sector (e.g. €9,26 in fruit growing,

€10,12 in oriculture, €11,25 in silvi-

culture, €11,33 in tree nurseries).

This

wage applies to all workers in the sector

including seasonal workers.

In the hospitality sector, the minimum

hourly wage is also set by a sectorial col-

lective labour agreement.

The collective

labour agreement for the hospitality sec-

tor provides each year a detailed list of

the existing jobs in the sector and deter-

2.3.

PERSONAL CHARACTERISTICS

OF SEASONAL WORKERS

TOP COUNTRIES OF ORIGIN

Only the Flemish Region could provide

data on work authorisations issued for

seasonal work in 2018. In total, 74 work

authorisations were granted to sea-

sonal workers in the Flemish Region in

2018. Half of these authorisations (37)

were granted to Indian nationals. For 20

work authorisations, the nationality of

the seasonal worker was not identied

in the regional database. The rest of the

authorisations granted (17) were split

between nine different countries (Bang-

ladesh, Ghana, Kosovo, Mali, Morocco,

Nepal, Nigeria, Pakistan and Sri Lanka).

The Walloon Region, the Brussels Region

and the German-speaking Communi-

ty could not provide any statistical data

related to work permits obtained for sea-

sonal work before 1 September 2019.

It is worthwhile stating that Belgium

does not rely on seasonal workers from

third countries to ll labour market needs.

The small number of work authorisations

issued in the Flemish Region (110 work

authorisations issued in total between 1

September 2019 and 27 May 2020 for

the purpose of seasonal work) and the

lack of applications for seasonal work in

the other regions since the implemen-

tation of the Directive on 1 September

2019 illustrates this fact. The majority of

seasonal workers in Belgium are nation-

als from other EU Member States, mainly

Bulgaria, Poland and Romania.

The regions conrmed that since nation-

als from Bulgaria, Poland and Romania

have access to the Belgian job market, no

signicant number of work authorisation

applications have been led for seasonal

work in Belgium in the past years.

AGE GROUPS

Only the Flemish Region could provide

data related to the age of beneciaries of

work authorisations issued for seasonal

work in 2018. For the 74 work authori-

sations granted, the main age group was

45-49 (15 workers), followed by 35-39

(14 workers).

NUMBER OF

WORK AUTHORISATIONS

GRANTED BY

THE FLEMISH REGION

TO SEASONAL WORKERS

IN 2018 BY NATIONALITY

India 37

Ghana 3

Nepal 3

Bangladesh 2

Kosovo 2

Morocco 2

Nigeria 2

Mali 1

Pakistan 1

Sri Lanka 1

Unknown 20

Total 74

PROFILE OF SEASONAL WORKERSPROFILE OF SEASONAL WORKERS

28. Art. 1 and 2 of the Collective labour agreement of the Joint Committee on agriculture of 9 December 2019.

29. Art. 2 of the Collective labour agreement of the Joint Committee for companies in the horticulture sector of 9 December 2019.

30. Collective labour agreement for the hospitality sector of 14 April 2008.

27. Information provided by the Fédération Wallonne de l’Agriculture and conrmed by the Walloon Region.

2322

mines to which category (between I

and IX) each listed job belongs to. The

minimum hourly salary depends on the

category to which the seasonal worker

belongs to as well as their seniority level.

For 2020, the minimum hourly salary

for a seasonal worker in the hospitality

sector with one year of seniority var-

ied between €12,1504 (for category

I workers, e.g. cafeteria workers) and

€18,0369 (for category IX workers, e.g.

kitchen chefs). Specic and slightly more

advantageous calculation methods apply

to seasonal workers in the hospitali-

ty sector.

These particular calculation

methods are dened in the sectorial col-

lective labour agreement. For instance,

seasonal workers starting a new job will

enter in year one of seniority level after

performing 130 days of work, and year

two of seniority level after performing

390 days of work.

The abovementioned minimum sala-

ries are gross salaries from which social

security contributions and tax withhold-

ings must in principle be deducted.

As a general rule, reduced social security

contributions apply to seasonal workers,

which are calculated on the basis of a

low xed (standard) daily income instead

of the actual income, and determined by

the applicable sectorial agreement (e.g.,

in the agriculture sector, an amount of

€2,70 per working day must be deducted

as social contributions).

The vast major-

ity of seasonal workers also benet from

the application of a special social security

scheme (called the “work bonus”) aim-

ing to guarantee a higher net salary for

workers with low wages. The application

of these special schemes usually leads to

very low to non-existent social security

contributions for seasonal workers.

In addition to social security contribu-

tions, a withholding tax on professional

income must also be deducted from the

gross salary. No specic tax provisions

are in place for seasonal workers: they are

taxed on their actual income (as opposed

to a standard income for social security

contributions). In most cases, the with-

holding tax applied to seasonal workers’

income in the agriculture and horticulture

sectors is 11,11 %, and 33,31% in the

hospitality sector.

The abovementioned rules related to

social security and tax contributions

applicable to seasonal workers are only

general rules indicated here to provide

a broad overview on the net income of

seasonal workers in Belgium. The Bel-

gian seasonal workers scheme is highly

technical with many exceptions that are

beyond the scope of this study.

PROFILE OF SEASONAL WORKERSPROFILE OF SEASONAL WORKERS

2.5.

AVERAGE DURATION OF STAY

OF SEASONAL WORKERS

There are no data available on the aver-

age duration of stay of seasonal workers,

nor on the periods of the year for which

their work authorisations are granted.

According to the Fédération Wallonne de

l’Agriculture, the regions need seasonal

workers all year long, but more in particu-

lar during spring, summer and autumn.

The peak season depends on the specif-

ic sector. Winter is considered to be the

only off-peak period for seasonal work in

Belgium, although in some sectors, such

as the Christmas trees sector, the high

season is winter.

For the hospitality sector, summer is the

peak season in Belgium.

2.6.

SEASONAL WORK

AND IRREGULAR MIGRANTS

According to the Belgian labour inspec-

tion services, few cases of seasonal

work performed by irregular migrants

have been detected in the past years.

Between 1 January 2018 and 25 June

2020, out of 1136 inspections conduct-

ed on 10 640 workers in the agriculture

sector (not limited to seasonal workers),

only 26 cases of illegal work have been

reported (18 cases of workers without a

valid work permit and 8 cases of workers

without a valid residence permit).

Fairwork Belgium, the main Belgian

non-prot organisation defending the

rights of illegal workers, has conrmed

that they have received no requests for

assistance from irregular migrants per-

forming seasonal work in Belgium in

recent years.

28. Art. 1 and 2 of the Collective labour agreement of the Joint Committee on agriculture of 9 December 2019.

29. Art. 2 of the Collective labour agreement of the Joint Committee for companies in the horticulture sector of 9 December 2019.

30. Collective labour agreement for the hospitality sector of 14 April 2008.

31. Art. 15 of the Collective labour agreement for the hospitality sector of 14 April 2008.

32. This applies to seasonal workers who have performed the same job function for 130 days for the same employer under a ve-day

per week work schedule (Art. 15 §2 of the Collective labour agreement for the hospitality sector of 14 April 2008).

33. Article 2/1 of the Belgian Social Security Act of 27 June 1969, Belgian Ofcial Gazette, 25 July 1969.

POLICIES AND PROCEDURES FOR

SEASONAL WORK IN BELGIUM

ATTRACTING AND PROTECTING THE

RIGHTS OF SEASONAL WORKERS IN BELGIUM

2726

as a shortage occupation, the Walloon

Region also exempts seasonable work-

ers under the Directive from the labour

market test.

In Flanders, a similar shortage occupa-

tions list for middle-skilled workers, which

includes occupations in the construction,

transportation and health care sec-

tors, is applicable since January 2019.

The labour market test has been waived

for workers mentioned on this list. In

Flanders, seasonable workers are not

considered to be part of these categories

and are still subject to the labour market

testing.

The Brussels-Capital Region and the

German-speaking Community also have

shortage occupation lists, yet these lists

only exempt workers from third countries

from the labour market testing if they

have obtained the EU long-term residen-

cy status in accordance with EC Directive

2003/109/CE.

The labour market test-

ing therefore also applies to seasonal

workers in the Brussels-Capital Region

and German-speaking Community. In the

latter, a quota is also provided for under

the applicable regulation, but no annual

quota had been set in practice at the time

of writing of this study.

Before the implementation of the

Directive and its entry into force on 1

September 2019, there was no specic

scheme in place for the entry and stay of

seasonal workers from third countries.

Until today, Belgium does not rely on

seasonal workers from third countries

to ll its labour market needs. The small

number of work authorisations issued in

the Flemish Region under the Directive

(110 between 1 September 2019 and

27 May 2020) and the lack of season-

al work permit applications in the other

regions since the implementation of the

Directive on 1 September 2019 illustrate

this fact (see Section 2).

The Flemish Region and Walloon Region

conrmed that the majority of seasonal

workers are in fact nationals from other

EU Member States. The Walloon Region

noted that since nationals from Bulgaria,

Poland and Romania have access to the

Belgian job market, no signicant num-

ber of work authorisation applications

have been led for seasonal work in Bel-

gium in the past years.

According to the Walloon Federation

of Agriculture (Fédération Wallonne de

l’Agriculture, FWA), the current number

of seasonal workers coming from other

EU Member States is high enough to ll

the country’s labour market needs. The

FWA stated that most farmers encounter

no problems in nding seasonal workers

in other EU Member States and that the

administrative burden related to the sea-

sonal work permit application process

usually deters farmers from hiring work-

ers from third countries.

Unlike other Member States, Belgium did

not develop specic migration policies

to attract seasonal workers from third

countries. In accordance with the Direc-

tive, it did however set up a framework

with regard to the fees and duration of

the procedure, the application of labour

market tests, the facilitation of re-entry of

seasonal workers and the conditions for

a change of status. In addition to these

procedural aspects, this section also dis-

cusses the relevant actors in promoting

seasonal work and the information pro-

vided to employers.

3.1.

IMPORTANCE OF

SEASONAL WORKERS

FOR THE LABOUR MARKET

In Belgium, the entry and stay of sea-

sonal workers from third-countries is not

part of the overall migration policies, the

focus being primarily on other categories

of third-country national workers.

Historically the overall federal migration

policy essentially aimed at attracting

highly-skilled workers.

However, since

economic migration became a region-

al competence, each region started to

develop its own migration policy. The

recent changes in the policies of both the

Flemish and the Walloon Regions show

a rst opening towards middle-skilled

workers.

As a general rule, companies wishing to

employ low- or middle-skilled workers

from third countries in Belgium need to

pass a labour market test.

Since June 2019, the Minister for

employment of the Walloon Region

publishes yearly a list of shortage occu-

pations for middle-skilled workers for

which employers no longer need to prove

that they could not nd a suitable candi-

date within a reasonable period of time.

The list, applicable since 12 Septem-

ber 2019, includes occupations in the

IT, maintenance and construction sec-

tors. Although seasonal work is not listed

POLICIES AND PROCEDURES FOR SEASONAL WORK IN BELGIUMPOLICIES AND PROCEDURES FOR SEASONAL WORK IN BELGIUM

36. Art. 18 §2 Decision of 7 December 2018 of the Flemish Government implementing the Law of 30 April 1999 on the employment

of foreign workers, Belgian Ofcial Gazette, 21 December 2018.

37. Art. 38 septies of the Royal Decree of 9 June 1999 implementing the Law of 30 April 1999 relating to the occupation of foreign

workers, Belgian Ofcial Gazette, 26 June 1999.

34. EMN, Determining labour shortages and the need for labour migration from third countries in Belgium, 2015, p. 189, https://

ec.europa.eu/home-affairs/sites/homeaffairs/les/what-we-do/networks/european_migration_network/reports/docs/emn-stud-

ies/emn_labour_shortages_synthesis__nal.pdf.

35. Art. 2 §3 of Decision of 16 May 2019 of the Walloon Government relating to the occupation of foreign workers and repealing the

Royal Decree of 9 June 1999 implementing the Law of 30 April 1999 relating to the occupation of foreign workers, Belgian Ofcial

Gazette, 19 June 2019.

2928

3.3.

LABOUR MARKET TEST

In the Flemish Region, the Brussels-Cap-

ital Region and the German speaking

community, the respective Decisions

provide that a labour market test applies

to the seasonal workers covered by the

Directive. Employers must therefore

demonstrate that they cannot nd a

suitable candidate within a reasonable

timeframe in the Belgian and European

labour market. Wallonia decided not to

apply a labour market test to seasonal

workers covered by the Directive.

3.4.

FACILITATION OF RE-ENTRY

Belgium has adopted measures to facili-

tate the re-entry of seasonal workers.

According to Article 17 of the Executing

Cooperation Agreement and the Immi-

gration Act, if the third-country national

applying for a single permit for seasonal

work has been employed as a season-

al worker in Belgium over the past ve

years and has complied with the appli-

cable regulations during their previous

stay, the decision on their permit applica-

tion must be taken within 60 days.

This

provision is a partial transposition of Arti-

cle 16 of the Seasonal Workers Directive,

which provides that Member States shall

facilitate re-entry of third-country nation-

als who were admitted to that Member

State as seasonal workers at least once

within the previous ve years, and who

fully respected the conditions applicable

to seasonal workers under this Directive

during each of their stays. Article 16,

2 (c) of the Directive provides that the

facilitation may include an accelerated

procedure leading to a decision on the

application for a worker permit for sea-

sonal work or a long stay visa.

The Immigration Act further states that

when the authorities process a single

permit application for seasonal work,

the fact that the applicant has been

employed as a seasonal worker in Bel-

gium over the past ve years and has

complied with the regulations applicable

to seasonal workers during their previous

3.2.

FEES AND DURATION

OF THE PROCEDURE

In 2018, prior to the transposition of the

Directive, the average processing time

for work permit applications for seasonal

work in Flanders was 40,7 days: an aver-

age of 16,7 days between the reception

of the application and the start of the

processing, and an average of 24 days

for the actual processing of the applica-

tion.

The new scheme transposing the Direc-

tive and applicable as of 1 September

2019 provides that a decision on the

single permit application for seasonal

work must be delivered within 90 days

from the notication by the competent

regional authority that the application le

is considered to be complete, i.e. admis-

sible.

However, it should be noted that

there are no legal time limits for the initial

decision on the admissibility of the case

by the regional authority, with the excep-

tion of the Flemish Region.

The applicable legislation also provides

that if the third-country national apply-

ing for a seasonal single permit has

been employed as a seasonal worker

in Belgium over the past ve years, and

has fully complied with the conditions

applicable to seasonal workers during

their previous stay, the decision must be

taken within 60 instead of 90 days.

For

renewal as well as extension applica-

tions, a decision must be delivered within

30 days from the notication from the

competent authority that the application

le is complete.

As regards the cost of the application,

a fee of €350 applies to single permit

applications (for stays longer than 90

days) for seasonal work.

In addition,

some municipalities apply a fee for the

renewal, extension or replacement of

certain types of residence permits. The

municipal fee is limited to an amount of

€50 and can be levied only once a year.

POLICIES AND PROCEDURES FOR SEASONAL WORK IN BELGIUMPOLICIES AND PROCEDURES FOR SEASONAL WORK IN BELGIUM

45. Art. 16 Seasonal Workers Directive.

46. Art. 61/29-4 §4 of the Immigration Act.

38. Art. 18-19 Seasonal Workers Directive.

39. Art. 17 § 1 of the Executing Cooperation Agreement of 6 December 2018; Article 61/29-4 of the Immigration Act.

40. Art. 66 Decision of 7 December 2018 of the Flemish Government implementing the Law of 30 April 1999 on the employment of

foreign workers.

41. Article 17 §2 of the Executing Cooperation Agreement of 6 December 2018.

42. Article 17 §3 of the Executing Cooperation Agreement of 6 December 2018.

43. Article 1/1/1 2° a) of the Royal Decree of 8 October 1981 implementing the Law regarding the entry, residence, settlement and

removal of foreign nationals, Belgian Ofcial Gazette, 27 October 1981 (Royal Decree implementing the Immigration Act).

44. Royal Decree of 5 March 2017 determining the residence permits for which the municipalities can apply fees for their renewal, ex-

tension or replacement and determining the maximum amount mentioned in article 2, § 2, of the Law of 14 March 1968 repealing

the Law relating to the residence taxes of foreigners, coordinated on 12 October 1953, Belgian Ofcial Gazette, 20 March 2017.

3130

3.6.

RELEVANT ACTORS

IN PROMOTING SEASONAL

WORK

Each of the regions in Belgium has an

employment agency: VDAB (Vlaam-

se Dienst voor Arbeidsbemiddeling en

Beroepsopleiding) in Flanders, Actiris in

Brussels, FOREM (Ofce Wallon de la

Formation Professionnelle et de l’Em-

ploi) in Wallonia and ADG (Arbeitsamt

der Deutschsprachigen Gemeinschaft) in

the German-speaking Community. Each

of these public organisms promotes job

offers, including for seasonal work, on

their website.

On 8 April 2020, in an effort to address

the shortage of seasonal workers result-

ing from the Covid-19 outbreak, a group

of representative organisations in the

agriculture and the horticulture sec-

tors in Wallonia

launched the website

Jobs Easy-Agri,

an online platform to

connect farmers with candidates for

seasonal work. Wallonia conrmed the

success of Jobs Easy-Agri, mentioning

that 507 candidates for seasonal work

had already registered only a couple of

days after its launch

Shortly after Wal-

lonia, Flanders launched a similar online

platform called Help De Oogst (“save the

harvest”).

It should nevertheless be noted that none

of the abovementioned websites (nor the

ofcial websites of the abovementioned

public organisms for employment) cur-

rently have English versions. They are

therefore not targeting seasonal workers

outside Belgium.

According to the Walloon Federation of

Agriculture, word of mouth is the main

source of the recruitment of foreign

seasonal workers, who represent the

majority of seasonal workers in Belgium

and are mainly from other EU Member

States. The same workers often come

back each season and refer other work-

ers to their employers.

stay must be considered when exam-

ining the application.

The Walloon

Region took a step further by providing

that the re-entry of a seasonal worker

who has been employed in the Europe-

an Economic Area as a whole and has

complied with the applicable regulations

should be facilitated.

Regarding visa applications more specif-

ically, the Immigration Act provides that

the executive power can adopt measures

derogating from the Immigration Act’s

general provisions to facilitate the deliv-

ery of a visa to third-country nationals

who have been employed as a season-

al worker in Belgium or in another EU

Member State over the past ve years

and who have complied with the regu-

lations applicable to seasonal workers

during their previous stay.

3.5.

CHANGE OF STATUS

Third-country nationals in Belgium for

the purpose of seasonal work can apply

for a change of status while they are in

Belgium, assuming that at the time the

application is submitted, the third-coun-

try national is in legal stay in Belgium,

and that the regulation applicable to the

permit they apply for does not prohibit

the applicant from applying while on the

Belgian territory.

As of September 2020, third-country

nationals already staying in Belgium can

only apply for a single permit if they are

holder of a short-term residence permit,

a student permit or a researcher permit.

For other categories of third-country

nationals, applications from the Belgian

territory are no longer possible.

POLICIES AND PROCEDURES FOR SEASONAL WORK IN BELGIUMPOLICIES AND PROCEDURES FOR SEASONAL WORK IN BELGIUM

52 https://jobs.easy-agri.com/.

531. https://borsus.wallonie.be/home/presse--actualites/publications/covid-19--507-inscriptions--la-plate-forme-

pour-recruter-du-personnel-saisonnier-rencontre-un-beau-succes.publicationfull.html

54. https://www.vdab.be/helpdeoogst.

47. Art. 61/29-8 §4 of the Immigration Act.

48. Art. 23 Decision of 16 May 2019 of the Walloon Government relating to the occupation of foreign workers and repealing the

Royal Decree of 9 June 1999 implementing the Law of 30 April 1999 relating to the occupation of foreign workers, Belgian Ofcial

Gazette, 19 June 2019.

49. Art. 61/29-3 of the Immigration Act.

50. Art. 61/25-2, §2 Immigration Act, as modied by the Law of 31 July 2020 modifying the Law of 15 December 1980 and the Law

of 6 May 2009, Belgian Ofcial Gazette, 28 August 2020.

51. The Collège des Producteurs, Fédération Wallonne Horticole, Fédération Wallonne de l’Agriculture, FUGEA, Bauernbund and

Unab.

3332

3.7.

INFORMATION PROVIDED TO

EMPLOYERS

All the necessary information regarding

the procedure for hiring seasonal work-

ers from third countries, including the

forms and documents to submit for the

seasonal worker’s work permit applica-

tion, can be found on the ofcial website

of each region:

• For Flanders:

https://www.vlaanderen.be/en/working

• For Wallonia:

https://emploi.wallonie.be

• For the German-speaking Community:

https://www.ostbelgienlive.be

• For Brussels:

http://werk-economie-emploi.brussels

Representative organisations also pro-

vide information on the procedure for

hiring seasonal workers through infor-

mation available on their websites and

their regular publications. In addition,

some of these organisations, such as the

Fédération Wallonne de l’Agriculture in

Wallonia and the Boerenbond in Flan-

ders, provide counselling services to their

members who can address them legal or

human resource-related questions.

POLICIES AND PROCEDURES FOR SEASONAL WORK IN BELGIUMPOLICIES AND PROCEDURES FOR SEASONAL WORK IN BELGIUM

PROTECTION AND RIGHTS

OF SEASONAL WORKERS

ATTRACTING AND PROTECTING THE

RIGHTS OF SEASONAL WORKERS IN BELGIUM

3736

carry out comparable employment activ-

ities only with regard to family benets. In

Belgium, single permit holders – including

seasonal workers – are not entitled to fam-

ily benets if their single permit is issued

for a maximum period of 6 months.

Belgium does not apply any formal

restrictions with regard to unemploy-

ment benets. It is important to note

though that a person should be in legal

stay in order to claim these benets. As

the residence rights of third-country

nationals temporarily staying in Belgium

end simultaneously with the work rights,

these persons would in principle not be

entitled to unemployment benets. Sin-

gle permit holders, whose work rights

have been terminated prior to the expi-

ry of the single permit, are nonetheless

entitled to unemployment benets for a

maximum of 60 days after the termina-

tion of the employment agreement.

In addition, in order to be eligible for

unemployment benets in Belgium, a

worker must have worked for a spe-

cic number of days over a determined

period of time preceding the period of

unemployment. The number of days

that a third-country national worked in

the country of origin will in principle not

be taken into account.

As a result, the

majority of third-country national work-

ers in Belgium do not benet from the

same rights as national workers when it

comes to unemployment benets.

Finally, while not mentioned as such

in the Directive, it should be noted that

third-country nationals doing season-

al work in Belgium may be particularly

vulnerable to exploitation or human traf-

cking. In 2019, 35 workers in the

agricultural and horticultural sectors, and

31 workers in the hospitality sector have

been identied as potential victims of

trafcking in human beings by the labour

inspectorate.

However, these data do

not specify whether these workers were

seasonal workers.

This fourth section describes the rights

of seasonal workers from third countries

in Belgium compared to the rights of

national workers. The section also focus-

es on the key actors and mechanisms

ensuring the protection of these rights.

4.1.

EQUAL TREATMENT

OF SEASONAL WORKERS

The Directive provides for equal treat-

ment of seasonal workers and nationals

in relation to nine categories of rights.

The provisions include a right to receive

statutory pensions based on previous

employment and acquired in accord-

ance with EU legislation

under the

same conditions and at the same rates

as nationals when they move to a third

country. In Belgium, the Royal Decree

of 23 April 2018 set up a framework for

the transfers of pension contributions to

the countries of origin of third-country

national workers.

Third-country nation-

als from countries with which Belgium

has concluded a social security agree-

ment can apply through their local social

security authority. Third-country nation-

als from other countries can send an

application by registered mail to the Fed-

eral Pensions Service.

According to the Directive, Member

States may however restrict equal

treatment of third-country nationals by

limiting their access to certain of the

rights mentioned, notably family and

unemployment benets, educational and

vocational training and tax benets.

Belgium applies a restriction to the equal

treatment between seasonal workers

from third countries and nationals who

PROTECTION AND RIGHTS OF SEASONAL WORKERSPROTECTION AND RIGHTS OF SEASONAL WORKERS

60. Executing Cooperation Agreement of 17 June 2016 between the Flemish Community, the Walloon Region, the Common Com-

munity Commission and the German-speaking Community concerning the transposition into family law of Directive 2011/98/EU

of the European Parliament and of the Council of 13 December 2011 establishing a single application procedure for the issuance

of a single permit authorizing third-country nationals to reside and work in the territory of a Member State and establishing a

common set of rights for workers from third countries legally residing in a Member State, Belgian Ofcial Gazette, 1 July 2016.

61. Art. 69 of the Royal Decree of 25 November 1991 on the regulation of unemployment, Belgian Ofcial Gazette, 31 December 1991.

62. Exceptions apply to a very limited number of countries, such as Bosnia and Herzegovina and Macedonia, resulting from the appli-

cation of bilateral agreements.

63. Federal Migration Centre Myria, Rapport annuel traite et trac des êtres humains – Jaarverslag mensenhandel en mensensmokkel,

55. Art. 23(1) Seasonal Workers Directive.

56. Seasonal workers are moreover entitled to receive

57. Art. 3 Regulation (EC) No 883/2004 on the coordination of social security systems.

58. Royal Decree of 23 April 2018 modifying Art. 65 of the Royal Decree of 21 December 1967 laying down general rules for the

scheme of retirement and survivor’s pensions, Belgian Ofcial Gazette, 2 May 2018.

59. FR: Service fédéral des pensions; NL: Federale Pensioendienst.

3938

4.3.

KEY ACTORS ENSURING THE

PROTECTION OF RIGHTS

In Belgium, the rights of seasonal work-

ers are protected by a range of actors,

including the labour inspectorates, trade

unions and organisations defending the

rights of foreign nationals.

In terms of cooperation between national

authorities, it should be noted that until

recently the Belgian Immigration Ofce

and the national labour authorities

used

to cooperate in an ad hoc manner. On 8

May 2018, these authorities decided to

formalise their cooperation by signing

a Cooperation protocol. The authori-

ties agreed to give each other access to

their databases in order to better com-

bat social fraud and human trafcking. In

addition to this exchange of information,

the authorities also agreed to integrate

information related to single permits into

the existing online platform of the Belgian

social security authority

for the declara-

tion of foreign workers coming to work

on a temporary basis in Belgium, known

as the ‘Limosa declaration’. The Cooper-

ation protocol specically mentions the

potential usefulness of this last measure

for employers of seasonal workers in the

agricultural and horticultural sectors.

Beyond national authorities, important

actors protecting the rights of seasonal

workers in Belgium are the trade unions

(such as the Fédération générale du tra-

vail de Belgique FGTB Horval, the main

trade union representing workers from

the agriculture, horticulture and hospital-

ity sectors in Belgium) and organisations

defending the rights of foreign nation-

als (such as Fairwork Belgium or

Coordination et initiatives pour réfugiés

et étrangers CIRE).

4.2.

ACCESS TO

ADEQUATE HOUSING

Under the Directive, EU Member States

are obliged to require evidence that the

seasonal workers benet from accom-

modation that ensures an adequate

standard of living for the duration of their

stay. For the application of the Directive,

the Belgian legislation refers to the rel-

evant housing legislation to dene the

“adequate standard of living”.

Like economic migration, housing is a

regional competence in Belgium. Each

region has a Housing Code laying down

detailed rules related to security, sanita-

tion and equipment to improve the living

conditions of tenants. Each local author-

ity competent for the application of the

Directive therefore refers to its local

Housing Code.

Documents proving the adequate

accommodation must be attached to the

single permit application.

The Immi-

gration Ofce is in charge of examining

these documents in the framework of

the residence aspects of the single per-

mit application.

In the draft version

of the Royal Decree implementing the

Directive, a provision was added that in

case of doubt on the adequacy of the

accommodation, the Immigration Ofce

could request the opinion of the regional

administration in charge of implementing

the Housing Code. This provision was

removed from the nal version of the

Decree after it was pointed out during

the adoption process that the Executing

Cooperation Agreement did not empow-

er the federal government with the

authority to entrust the regional organ-

isms in charge of applying the Housing

Code with a new mission.

PROTECTION AND RIGHTS OF SEASONAL WORKERSPROTECTION AND RIGHTS OF SEASONAL WORKERS

69. FR: Ofce des Etrangers; NL: Dienst Vreemdelingenzaken.

70. FR: Service d'information et de recherche sociale (SIRS); NL: Sociale inlichtingen- en opsporingsdienst (SIOD). The SIRS-SIOD

coordinates the social inspection services in Belgium.

71. FR: Ofce National de Sécurité Sociale (ONSS); NL: Rijksdienst voor Sociale Zekerheid (RSZ).

64 Art. 20 Seasonal Workers Directive.

65. Art. 16 of the Executing Cooperation Agreement of 6 December 2018.

66. Art. 16(3) of the Executing Cooperation Agreement of 6 December 2018; Art. 61/29-8 4° of the Immigration Act.

67. Ibidem.

68. Council of State, Advice 66.622/4, 5 November 2019, p. 11-12 (Art. 105/43).

4140

4.6.

OTHER MECHANISMS

ENSURING THE PROTECTION

OF RIGHTS

Until today, Belgium did not adopt any

specic procedures or mechanisms to

ensure that seasonal workers and their

employers are informed of their rights

and duties.

Belgium did not set up any specic pro-

cedures or mechanisms to monitor and

carry out inspections to verify the exer-

cise of seasonal workers’ rights and

compliance with the rules by both the

seasonal workers and their employers.

4.4.

COMPLAINTS

AGAINST EMPLOYERS

In order to facilitate the lodging of com-

plaints by seasonal workers against

their employer, the Executing Coopera-

tion Agreement provides that seasonal

workers may be represented before the

Belgian Courts by representative organ-

isations of workers, trade unions or any

other institutions or associations aiming

to defend the interests of third-country

nationals in Belgium (subject to the con-

sent of the worker).

The Walloon Decision transposing the

Directive explicitly states that the Gov-

ernment must ensure that seasonal

workers have equal access to all meas-

ures related to their protection against

any unfavourable treatment by the

employer resulting from a complaint or a

legal action introduced by them.

4.5.

SANCTIONS

AGAINST EMPLOYERS

The Walloon Region introduced a spe-

cic sanction for employers who failed

to full their obligations toward seasonal

workers. Its Decision provides that if the

authorisation for the purpose of seasonal

work is withdrawn, the employer shall be

liable to pay compensation to the worker.

Any liability shall cover any outstanding

obligations which the employer would

have had to respect if the authorisation

for the purpose of seasonal work had not

been withdrawn.

Brussels, Flanders and the Ger-

man-speaking Community did not put

in place any specic sanction against

employers who did not comply with

their duties under the Directive. Only

the general provisions of the Belgian

Social Penal Code, including the spe-

cic sanctions in respect of the refusal

or withdrawal of permits, apply. For

instance, according to the Social Penal

Code, an employer who does not respect

the limitations of the work authorisation,

such as the duration of the work, or who

employs personnel whose authorisa-

tion has been withdrawn, can receive an

administrative ne between €400 and

€4 000 or be condemned to pay a crim-

inal ne between €800 and €8 000,

be multiplied by 8 pursuant to the Law of

5 March 1952 relating to the additional

decimals

on criminal nes.

PROTECTION AND RIGHTS OF SEASONAL WORKERSPROTECTION AND RIGHTS OF SEASONAL WORKERS

76. Art. 22 Decision of 16 May 2019 of the Walloon Government relating to the occupation of foreign workers and repealing the

Royal Decree of 9 June 1999 implementing the Law of 30 April 1999 relating to the occupation of foreign workers, Belgian Ofcial

Gazette, 19 June 2019.

77. Art. 175 (2) Belgian Social Penal Code.

78. FR: opdécimes; NL: opdeciemen.

79. Art. 1 Law of 5 March 1952 relating to the additional decimals on criminal nes, Belgian Ofcial Gazette, 3 April 1952.

80. Art. 11 Seasonal Workers Directive.

81. Art. 24 Seasonal Workers Directive.

72. Art. 25 Seasonal Workers Directive.

73. Art. 23 of the Executing Cooperation Agreement of 6 December 2018.

74. Art. 25 Decision of 16 May 2019 of the Walloon Government relating to the occupation of foreign workers and repealing the

Royal Decree of 9 June 1999 implementing the Law of 30 April 1999 relating to the occupation of foreign workers, Belgian Ofcial

Gazette, 19 June 2019.

75. Art. 17 Seasonal Workers Directive.

CONCLUSIONS

ATTRACTING AND PROTECTING THE

RIGHTS OF SEASONAL WORKERS IN BELGIUM

4544

ly high enough to ll the country’s labour

market needs, and the administrative

burden related to the work and single

permit application process usually deters

farmers from hiring seasonal workers

from third countries.

However, markets are subject to change

and the workforce can uctuate. If the

number of seasonal workers availa-

ble from other EU member states come

to decrease in the future, the Directive

could come to play a more important role.

The Directive entered into force in Bel-

gium only on 1 September 2019. At

the time of the drafting of this study,

Belgium had not yet admitted any

third-country seasonal worker under

the Directive, making it difcult to fully

assess its transposition. Nevertheless,

some observations can already be made.

It can rst be argued that the freedom

given to Member States to list the sec-

tors to which the Directive will apply can

result in a situation where the Directive is

formally transposed into the legislation,

but not applied in practice. The Brussels

Region, which has decided that only the

agriculture sector will be covered by the

Directive while this economic sector is

not active in the region (unlike, for exam-

ple, the hospitality sector, which is not

covered in the region by the Directive)

can be cited as an example.

As regards the protection of seasonal

workers’ rights, Belgium has not yet fully

implemented some of the Directive’s pro-

visions. The legislation currently in place

does not provide for sanctions such as

the exclusion of employers who are in

serious breach of their obligations under

the Directive from employing seasonal

workers, as required by Article 17 (1) of

the Directive. Only Wallonia provides for

the specic sanction under Article 17 (2)

of the Directive, namely the liability to pay

compensation to the seasonal worker if

the authorisation is withdrawn in specic

circumstances listed under Article 9 (2)

and points (b), (c) and (d) of Article 9 (3)

of the Directive. Brussels, Flanders and

the German-speaking Community have

not put in place any specic sanction

against employers who have not fullled

their duties under the Directive. Only the

general provisions of the Belgian Social

Penal Code and the general sanctions

in respect of refusal or withdrawal of

work permits apply. In addition, Belgium

does not have any specic procedures or

mechanisms in place to monitor, assess

and carry out inspections to prevent

abuses and to sanction infringements of

the Directive, as prescribed by Article 24

of the Directive.

Although each region in Belgium has

different needs and consequently differ-

ent employment policies, it can be safely

predicted that in the nearby future, the

impact of the Seasonal Workers Directive

in Belgium will be limited. At this time,

Belgium does not rely on seasonal work-

ers from third countries to ll its labour

market needs. The majority of seasonal

workers in Belgium are foreigners com-

ing from other EU Member States, mainly

from Bulgaria, Poland and Romania. The

Walloon Region conrmed that no sig-

nicant number of work authorisation

applications have been led since Bul-

garia and Romania benet from the EU

freedom of movement and have access

to the EU job market. According to sec-

torial representatives such as the FWA,

the number of seasonal workers coming

from other EU Member States is usual-

CONCLUSIONSCONCLUSIONS

ANNEXES

ATTRACTING AND PROTECTING THE

RIGHTS OF SEASONAL WORKERS IN BELGIUM

4948

ANNEXESANNEXES

ANNEX A:

REFERENCES

LEGISLATION

European

Directive 2014/36/EU of the European Parliament and of the Council of 26 February

2014 on the conditions of entry and stay of third-country nationals for the purpose of

employment as seasonal workers, Ofcial Journal of the European Union, 28 March

2014.

Federal

Law of 31 July 2020 modifying the Law of 15 December 1980 and the Law of 6 May

2009, Belgian Ofcial Gazette, 28 August 2020.

Law of 29 May 2020 laying down various urgent tax measures due to the Covid-19

pandemic, Belgian Ofcial Gazette, 11 June 2020.

Law of 5 May 2019 modifying the Law of 15 December 1980 regarding the entry,

residence, settlement and removal of foreign nationals, Belgian Ofcial Gazette, 22

August 2019.

Belgian Social Penal Code of 6 June 2010, Belgian Ofcial Gazette, 1 July 2010.

Law of 15 December 1980 regarding the entry, residence, settlement and removal

of foreign nationals, Belgian Ofcial Gazette, 31 December 1980 (Immigration Act).

Belgian Social Security Act of 27 June 1969, Belgian Ofcial Gazette, 25 July 1969.

Law of 5 March 1952 relating to the additional decimals on criminal nes, Belgian

Ofcial Gazette, 3 April 1952.

Special Powers Decree n. 14 of 27 April 2020 taken in execution of Article 5, § 1, 5°

of the Law of 27 March 2020 granting powers to the King in order to take measures

in the ght against the spread of the coronavirus Covid-19 (II) aimed at ensuring the

proper organization of work in critical sectors, Belgian Ofcial Gazette, 28 April 2020.

Royal Decree n. 5 of 9 April 2020 modifying certain rules applicable in the agricultur-

al and horticultural sectors in the framework of Covid-19 measures, Belgian Ofcial

Gazette, 20 April 2020.

Royal Decree of 23 March 2020 modifying the Royal Decree of 8 October 1981

implementing the Law regarding the entry, residence, settlement and removal of for-

eign nationals, Belgian Ofcial Gazette, 7 May 2020.

Royal Decree of 23 April 2018 modifying Art. 65 of the Royal Decree of 21 December

1967 laying down general rules for the scheme of retirement and survivor’s pensions,

Belgian Ofcial Gazette, 2 May 2018.

Royal Decree of 5 March 2017 determining the residence permits for which the

municipalities can apply fees for their renewal, extension or replacement and deter-

mining the maximum amount mentioned in article 2, § 2, of the Law of 14 March

1968 repealing the Law relating to the residence taxes of foreigners, coordinated on

12 October 1953, Belgian Ofcial Gazette, 20 March 2017.

Royal Decree of 9 June 1999 implementing the Law of 30 April 1999 relating to the

occupation of foreign workers, Belgian Ofcial Gazette, 26 June 1999.

Royal Decree of 25 November 1991 on the regulation of unemployment, Belgian

Ofcial Gazette, 31 December 1991.

Royal Decree of 8 October 1981 implementing the Law regarding the entry, res-

idence, settlement and removal of foreign nationals, Belgian Ofcial Gazette, 27

October 1981 (Royal Decree implementing the Immigration Act).

Ministerial Decision of 3 April 2020 modifying the Ministerial Decision of 23 March

2020 on emergency measures to limit the spread of the Covid-19, Belgian Ofcial

Gazette, 3 April 2020.

Regional

Decision of 23 May 2019 of the German-speaking Community amending the Royal

Decree of 9 June 1999 implementing the Law of 30 April 1999 relating to the occu-

pation of foreign workers, Belgian Ofcial Gazette, 8 July 2019.

Decision of 16 May 2019 of the Government of the Brussels-Capital Region amending the

Royal Decree of 9 June 1999 implementing the Law of 30 April 1999 relating to the occu-

pation of foreign workers, with regard to work authorisation for activities carried out within

the framework of an intra-group transfer, seasonal worker, researcher, trainee, volunteer,

or within the framework of the European Blue Card, Belgian Ofcial Gazette, 4 June 2019.

Decision of 16 May 2019 of the Walloon Government relating to the occupation of foreign

workers and repealing the Royal Decree of 9 June 1999 implementing the Law of 30 April

1999 relating to the occupation of foreign workers, Belgian Ofcial Gazette, 19 June 2019.

Decision of 7 December 2018 of the Flemish Government implementing the Law of

30 April 1999 on the employment of foreign workers, Belgian Ofcial Gazette, 21

December 2018.

5150

ANNEXESANNEXES

Interfederal

Executing Cooperation Agreement of 28 May 2019 between the federal state, the

Walloon Region, the Flemish Region, the Brussels-Capital Region and the Ger-

man-speaking Community implementing the Cooperation agreement of 2 February

2018 between the federal state, the Walloon Region, the Flemish Region, Brus-

sels-Capital Region and the German-speaking Community on the coordination of

policies for the granting of work permits and the granting of residence permits, as

well as norms relating to the employment and stay of foreign workers, Belgian Ofcial

Gazette, 18 July 2019.

Executing Cooperation Agreement of 6 December 2018 between the federal state,

the Walloon Region, the Flemish Region, the Brussels-Capital Region and the Ger-

man-speaking Community implementing the cooperation agreement of 2 February

2018 between the federal state, the Walloon Region, the Flemish Region, Brus-

sels-Capital Region and the German-speaking Community on the coordination of

policies for the granting of work permits and the granting of residence permits, as

well as norms relating to the employment and stay of foreign workers, Belgian Ofcial

Gazette, 18 July 2019.

Executing Cooperation Agreement of 17 June 2016 between the Flemish Community,

the Walloon Region, the Common Community Commission and the German-speak-

ing Community concerning the transposition into family law of Directive 2011/98/

EU of the European Parliament and of the Council of 13 December 2011 establish-

ing a single application procedure for the issuance of a single permit authorizing

third-country nationals to reside and work in the territory of a Member State and

establishing a common set of rights for workers from third countries legally residing

in a Member State, Belgian Ofcial Gazette, 1 July 2016.

PARLIAMENTARY AND POLICY DOCUMENTS

Council of State, Advice 66.622/4, 5 November 2019 on the Draft version of the

Royal Decree of 23 March 2020 modifying the Royal Decree of 8 October 1981

implementing the Law regarding the entry, residence, settlement and removal of for-

eign nationals.

EMN STUDIES

Determining labour shortages and the need for labour migration from third coun-

tries in Belgium, 2015, https://ec.europa.eu/home-affairs/sites/homeaffairs/les/

what-we-do/networks/european_migration_network/reports/docs/emn-studies/

emn_labour_shortages_synthesis__nal.pdf.