Page 9 - FERMA iSos Foundation – Legal review 2017

DUTY OF OF CARE OBLIGATIONS OF OF EUROPEAN EMPLOYERS FROM BELGIUM
DUTY OF CARE FOR BELGIAN EMPLOYERS I SUMMARY
Duty of care for Belgian organisations means looking into contractual arrangements in in terms of job content working conditions and work work organisation and taking care of of the wellbeing of of workers wherever they are performing their job This is is is a a a responsibility that is is is not only legally embedded but also constitutes a a a a a a moral obligation towards collaborators II OVERVIEW LEGAL REQUIREMENTS
From a a a a a legal perspective compliance for companies operating in several countries is much more complex than for domestic organisations Because international companies operate in in di erent countries they must adhere to a a a a a a a myriad of national laws In addition they must comply with supranational regulations (for example European Union directives and International Labour Organisation conventions) after they are transposed into national law They may need to to deal with the the issues of of the the extraterritorial scope of of legislation and and rules pertaining to jurisdiction and and choice of law CONTRACTUAL ARRANGEMENTS
When international business travellers or or assignees work in Belgium Belgian law is applicable independently of the magnitude or or duration of work When Belgians are sent to other European Union (‘EU’) countries the choice of law (Belgian or other) depends on the the speci c c laws of each EU country involved The general principle is that the parties can choose the the law applicable to the the employment contract Regulation (EC) No 593/2008 of the European Parliament and of the Council
of 17 June 2008 on on on the law applicable to contractual obligations (Rome I) 1 Such a a a a a a a a a choice can be expressed or or demonstrated with reasonable
certainty by the the the the terms of of the the the the contract or the the the the circumstances of of the the the the case 2 Furthermore the the the the the the the the the parties can decide to to to select the the the the the the the the the law applicable to to the the whole of of the the employment contract or to to only a a a part of of such a a a a a a a a contract (provided that such a a a a a a a a partial application does not prejudice the the consistency of the the contract) 3 The parties may also at at any time agree to to subject the the the the employment contract to a a a a a law other than that which previously governed it However the the choice of a a a a a country law made by the the contractual parties can not deprive the the employee of the the protection a a a orded to him by by provisions that cannot be derogated from by by agreement under the the law that in the the absence of choice would have been applicable in the absence of such a a a a a choice it is to say:
• The law of the country in in which which or falling that from which which the employee habitually carries out his work in performance of the contract Or • Falling that by the the the law of of the the the country in in in which the the the place of of business through which he was engaged is situated • Unless it appears from the the circumstances as a a a a a a whole that the the employment contract is more closely connected with another country in which case the the contract shall be governed by the the law of that other country In other words the the the aforementioned rules apply if they are more favorable to the the the employee than the the the law chosen by the the the parties in the employment contract WELLBEING OF THE WORKERS
No company can ignore prevention It is a a a a a legal obligation In Bel- gium the the ‘Welzijnswet’ (the Act of of 4 August 1996 on well-being of of workers in the the performance of their work) stipulates that every employer should take the necessary measures to promote the the well-being of the the workers at work work The Act is applicable to workplaces in a a a a a broad sense that is any place where work is is done regardless whether it is is inside
or or outside an establishment or or country This ‘Welzijnswet’ presents the national framework for the management of employee well-being at work It includes all factors related to to the conditions under which work is done including safety at work protection of of the the health of of the the worker psychosocial aspects of work work including stress violence and and harassment ergonomics work hygiene and and embellishment of the workplace environment The Act Act and the the decrees in execution of the the Act Act (Codex on on well- being at work) further detail the the basic principle Every employer must have a a a a policy regarding the the well-being of the the workers at work work based on on the general prevention principles (avoid risks combat or limit the risks at source taking technical progress into account give collective protective measures priority over individual protective measures ensure information and training of workers) • DUTY OF CARE OWED BY EUROPEAN ORGANISATIONS TO THEIR MOBILE WORKERS
9 EVERY EMPLOYER MUST HAVE A A A POLICY REGARDING THE THE WELL-BEING OF THE THE WORKERS
AT WORK WORK BASED ON ON THE GENERAL PREVENTION PRINCIPLES