Below is an overview of the individuals reported to the NSSO as employees. You will also find the rules applicable to cross-border employment.
Who is employer?
- Which employees must be reported to the NSSO?
- Which employees need not be reported to the NSSO?
- What about cross-border employment?
Which employees must be reported to the NSSO?
The work contract
The largest category of individuals reported to the NSSO as employees are those working according to the terms of a work contract. This is a contract that binds an individual to carry out services under the authority of another individual.
Therefore, a work contract only exists if the three elements (services, salary and authority) are present in reality.
An employee is a person who carries out work under the authority of the employer in exchange for a salary
An employer is a natural or legal person who employs staff (employees).
The employer is responsible for reporting all of his/her employees to the NSSO.
For most employments, there is no doubt about the nature of that employment (employee or self-employed). An individual with a fixed monthly salary, who works 38 hours per week, who must punch in at the time clock, who must request his/her holiday and who must listen to what the manager says is clearly an employee. An individual who invests and takes a business risk, who organises his/her own work and works for whom he/she wants and when he/she wants is self-employed. However, there is a zone between the two forms of employment where the situation is not always clear.
For certain jobs or capacities, regulations have removed the doubts. It has been legally defined that certain persons always act in the capacity of an employee, even though for some of them there may not be a work contract. A summary.
The pharmacists working in a pharmacy accessible to the public which they do not own enjoy the status of an employee. If the parties demonstrate that the pharmacist does not work under the authority of the owner or tenant, the pharmacist is self-employed.
The following individuals are always to be considered as employees:
- those having received a doctoral fellowship exempt from taxation granted by a university institution and by a number of well-defined institutions such as the General National Archive, the Royal Belgian Library, the Belgian Institute for Space aeronomy, etc.
- research trainees, students and those having received a special doctoral fellowship from the National Scientific Research Fund
- those having received a research mandate from the Flemish Institute for the Advancement of Industrial Scientific and Technological Research
- those having received a specialisation fellowship, research or travel fellowship granted by the Institute for the Promotion of Industrial and Agricultural Scientific Research and its legal successors.
Individuals having received other fellowships are only considered as employees if they provide their services under a work contract (salary, services and authority).
Similar additional services
An individual who is an employee cannot perform similar additional services as a self-employed worker for the same employer. Therefore, an administrative employee of an insurance company who also sells some insurance in his/her free time for the same company shall have the capacity of employee for all his services rendered.
Physicians in training for physician Specialist
Individuals completing regulated training in a nursing institution to become a physician specialist are always employees.
Transporters of goods
Drivers transporting goods on behalf of a company using a vehicle which they do not own (or which was purchased or financed by the company) are always employees.
Individuals who seek out and visit customers and negotiate with them in order to conclude a business (not including insurance) are employees.
Such individuals may still be self-employed if the parties demonstrate that there is no authority. The conditions under which the business representative provides services are qualifying. A fixed, allocated sector, provision of lists with customers to visit, the obligation to attend meetings, etc. are elements which indicate the exercise of authority.
Those who, in the location of their choosing (generally at home), process raw materials or partially-finished products provided to them by a merchant are always employees.
The home worker may also hire employees to help him/her. In this case, there are two possibilities:
- If the home worker has no more than four helpers, they are all employees of the principal
- If the home worker normally employs more than four helpers, he/she is a work contractor and, thus, self-employed. He/she must report his/her helpers to the NSSO.
These rules only apply to manual work. Individuals who carry out intellectual work, such as translations, at home, must only be reported to the NSSO if they work within the framework of a work contract.
Individuals who provide artistic services or produce artistic works by mission in exchange for payment of salary are employees. This may include the creation, execution or interpretation of artistic works for the audiovisual and plastic arts, music, literature, show, theatre and choreography.
- artists providing services or producing works for events within his/her family
- artists who prove that they are not bound by an employer-employee relationship
- persons providing artistic services and/or producing artistic works for a legal person for which they act as mandatary
- artists who fall under the rule of so-called small compensation. These are artists who provide services for a maximum of thirty days per year and earn a daily or annual sum which remains under defined limits (currently +/- € 110.00 per day and +/- € 2230.00 per year).
There is an “Artists Commission” which is entrusted with the following tasks:
- informing artists of their social security rights and obligations
- providing advice on questions whether an artist is employee or self-employed
- delivering self-employed declarations. While valid, such declarations serve as proof of the status of self-employed.
Individuals whose main activities provided in exchange for a real salary consist in carrying out the daily management of non-commercial associations are employees. This includes day-to-day managers of associations or organisations such as health insurance funds, non-profit organisations, etc.
Trainees are considered as normal employees. The most important categories are :
- middle-class trainees (training as baker, butcher, etc.)
- industrial trainees (metal industry, construction, etc.).
Natural persons who welcome children into their family environment and are affiliated with an approved childminder's service are always employees.
Drivers transporting persons on behalf of a company using a vehicle which they do not own (or which was financed by the company) are always employees. Special rules apply to taxi drivers.
Sporting people who train for or participate in sporting competitions or events under the authority of another individual are always employees if their salary exceeds a certain limit (currently +/- € 8200 per year). The same rue applies to trainers and football referees.
Other sporting people are only salaried employees if they work under a work contract and thus provide services under authority and in exchange for payment of a salary.
Statutory Workers (with the government)
In governmental services (federal public services, Army, public service institutions, public education system of one of the communities, a.s.o.), apart from the individuals working under a work contract, there are also statutory members of staff (which may or may not be permanently appointed). Legislation for employees is also expressly applicable to statutory members of staff.
Limited application of the social security system
A “normal” employee reported to the NSSO participates in all social security regulations. The employer and employee must pay contributions to the NSSO for all branches of the social security: pensions, unemployment, child allowance, health insurance, holiday (for manual workers), occupational accidents and illnesses.
There are however a number of exceptions to that rule.
- The young people do not pay any contributions for pensions until the 31st of December of the year during which they reach the age of 18 years. Physicians in training to become a specialist do not pay contributions for pensions and unemployment. Temporary workers in the horticulture sector do not pay contributions for annual holiday pay, etc.
- In the education and public sectors, the employer often pays out himself some social security benefits. For instance, certain institutions or services pay out themselves the child allowance to their staff, pay out benefits for sick or occupational accidents, etc. For those branches of social security for which these employers make the payments to the employees themselves, no NSSO contributions are due.
Which employees need not be reported to the NSSO?
Certain individuals are employees, but their employer need not report them to the NSSO due to the limited nature of their services.
Social and cultural sector
Under the following conditions, certain activities in the social and cultural sector do not require declaration to the NSSO:
- employment as person in charge, steward, caretaker, monitor, activity leader, lecturer, teacher
- activities in the context of social and cultural training, initiation to sports, holiday sports, playgrounds, holiday camps
- for non-profit associations
- for a maximum of 25 days per year
- prior to employment, submit a declaration to the Social Inspectorate of the Federal Public Service "Social Security".
Organisers of sporting events and individuals employed on the day of the events are also exempt from the payment of contributions:
- for a maximum of 25 days per year
- if the employees are included in a special designated register
- this does not apply to sporting people.
Workers employed for certain agricultural activities (planting and picking of hops and tobacco, cleaning and sorting of willows) need not be reported to the NSSO by the employer:
- if the services do not concern more than 25 days per year
- if the worker did not work in the agricultural sector during the same year
- if the individual was employed within the legally-defined periods.
Some students are not subject to the social security system but for them only a solidarity contribution has to be paid.
We are dealing here with the students for whom the following conditions are met:
- being employed under the terms of a written student contract, as referred to in Title VII of the law of July 3 1978 on the labour contracts;
- not working more than 50 calendar days ( = the contingent), to be chose freely in the course of a complete calendar year;
- not working throughout the periods, during which they are considered to attend courses or to participate in other activities.
House staff other than domestic workers
The two following categories of workers correspond to the notion of ‘house staff other than domestic workers :
- those who carry out activities of an intellectual kind for the household (such as babysitting, keeping elderly people company, running errands or accompanying less mobile persons) ;
- those who carry out manual work for the household, which, however, does not constitute household work in the proper sense (such as doing odd jobs, tending the garden).
From October 1st 2014 onwards only the 1st category of workers, namely those who carry out work of an intellectual kind, which does not exceed 8 hours a week, has not to be declared. If this work is carried out for different employers, the overall duration of this work has to be taken into account.
However the following persons always have to be declared, notwithstanding the number of hours worked :
- the 2nd category of house staff who carries out manual work for the household which is not household work (for example, odd-jobber, gardener) and who is bound by an employment contract ;
- the domestic workers, i.e. the workers who mainly carry out manual household work for the employer’s or his family’s household (do the laundry, ironing, cleaning, …) and who are bound by an employment contract.
What about cross-border employment?
The Belgian social security system does not apply only to Belgians working in Belgium. It may also apply to foreigners working in Belgium, Belgians working abroad and sometimes to foreigners working abroad. You will find a summary of the main principles of cross-border employment below.
The Belgian social security system is generally applicable to employees working in Belgium and:
- whose employer is established in Belgium
- whose employer is established abroad but has operational headquarters in Belgium and whose employee is attached to that headquarters.
The employee’s nationality is of no importance here.
For cross-border employment, there are however some exceptions to this general rule. One should make the distinction between the following:
- employment in countries with which Belgium is bound by an international treaty or agreement on social security.
- employment in countries with which Belgium has concluded no agreement
Employment in countries Belgium has concluded an agreement with
The Regulation EC No 883/2004
The Regulation EC No 883/2004 is, by far, the most important agreement. It determines from May 1 2010 onwards the applicable social security legislation for the subjects of all member states of the European Union who carry out their business activities in one or more of those countries. As from April 1st 2012 this Regulation is also applicable to Switzerland and since June 1st 2012 to Iceland, Norway and Liechtenstein.
As from January 1st 2011, this Regulation is in some cases also applicable to subjects of third nations that solely on the grounds of their nationality do not fall within the bounds of the provisions of the said Regulation, with the proviso that they are legal residents of the territory of one of the foregoing nations and do not find themselves in a situation that lies entirely within the internal sphere and remit of one single Member State.
Important remarks: if on the basis of the Regulation No 883/2004 a person is subject to the legislation of another member state than the one under whose social security system this person already falls by virtue of title II of the Regulation No 1408/71, he continues being subject to the legislation which was applicable to him and this during a maximum period of 10 years, on condition that:
- the situation of the person concerned remains unchanged;
- the person concerned does not request himself the application of the new regulation.
The main principles are the following:
- the employee works in the territory of one member state:
he is subject to the legislation of the country in which he/she works, even if he/she lives in another member state and/or his/her employer is established in another member state
the employee simultaneously works in the territory of two or more member states.
Many different forms of simultaneous employment are possible:
- working as a salaried employee in the territory of two or more member states on behalf of one employer or of several employers established in various member states
- working simultaneously as a salaried employee and a self-employed person
- working simultaneously as a salaried employee and a public servant
The regulation determines the applicable legislation for all possible cases. Insofar as possible, this is done according to the principle that the legislation of only one member state is applicable (often that of the country of residence).
The employee is always subject to the legislation indicated for all of his/her services. In the case of employees working for several employers, each of them must thus be affiliated with the social security institution of the competent country.
the employee works temporarily in another country (posting)
An employer may post his/her employee to another member state to work on his/her behalf. He/she may also hire an employee to immediately send him/her to another country.
In general, the employee remains subject to the legislation of the country in which he/she normally works or where he/she was hired. The originally defined duration of employment in the other country may not exceed 24 months. Under certain conditions an exceptional extension up to a maximum total of 5 years is possible. The employer or employee must request a posting certificate from the competent institution in the country from which the employee is posted. For Belgium, this is the NSSO. Requests may be made electronically on the social security portal site in Dutch or French.
Belgium has concluded social security agreements with the following countries: the USA, Canada, San Marino, Yugoslavia (only still valid for Serbia, Macedonia, Bosnia-Herzegovina and the Republic of Montenegro), Turkey, Algeria, Morocco, Tunisia, Israel, Chile, Australia, Croatia, the Philippines and Japan.
Most of these agreements are applicable only to the subjects of the contracting countries. The agreements concluded with Australia, Canada and the USA also provide for the possibility to post non-subjects.
The main principles of the various agreements are as follows:
- the employee works on the territory of one country:
the employer is subject to the social security system of that country of employment
- the employee works simultaneously on the territory of both countries:
the employer is subject to the social security system of each country for the activities carried out there. Each employer must fulfil its obligations towards the social security institutions of each country in which he/she employs employees
the posting rules for the various bilateral agreements are nearly identical to those of the EEC Regulation.
Thus, the duration of posting in most agreements is a maximum of 12 months, open to possible extension by an additional maximum period of 12 months and exceptionally up to a total of 5 years. For posting from Belgium, the forms can be requested via the social security portal site in Dutch or French.
In certain agreements, the duration of posting is fixed at 2 years (Canada, Chile, Turkey, Croatia and the Philippines) or 5 years (Australia, Japan and the USA), without possibility for extension. Departures from the original period of posting of 2 years (up to 5 years in total) are possible (address requests to the Department for international relations of the NSSO).
The European Social Security Treaty
This treaty is applicable to the subjects of the following countries insofar as the Regulation EC No 883/2004 and the Regulation EEC 1408/71 are not applicable: Belgium, Austria, Spain, the Grand Duchy of Luxembourg, the Netherlands, Portugal, Turkey and Italy.
In practice, the NSSO uses it nearly exclusively in cases of employment in the Turkish territory for which the Belgian-Turkish agreement is not applicable due to the nationality of the employee (such as posting of a Spanish employee from Belgium to Turkey).
Employment in countries with which Belgium has concluded no agreement
When an employer posts its Belgian-insured employee to a country with which Belgium has no social security agreement, in principle, that employee no longer falls under the Belgian legislation. However, if the planned duration of the employment is no more than 6 months, the employee may remain subject to the Belgian legislation. In that case, the employee may not affiliate him/herself with the Overseas Social Security Department. The employee may remain under the Belgian system for an additional six-month period if the employer notifies the NSSO of the extension prior to the expiry of the first six months.
If an employer posts its employee for an undetermined period of time or for a period which, from the beginning, is defined to last more than 6 months, he/she may no longer report him/her to the NSSO. If desired, the employee may affiliate him/herself with the Overseas Social Security system. (link to their site in Dutch, French or German)