Employment pitfalls for work at offshore sites in Belgium’s Exclusive Economic Zone
More and more platforms are being constructed and installed in Belgium’s exclusive economic zone (or EEZ). Employing workers assigned to such offshore projects triggers complex questions regarding the applicable employment, H&S, social security, and immigration regimes, especially if part of the (preparatory) works are executed on board a non-Belgian flagged vessel. Can the situation become complicated even further if the works are carried out by foreign (non-EU) nationals and not on the platform itself? What pitfalls should a service provider be aware of?
General legal framework
Both international and Belgian law set out various rules regarding the exploitation of platforms constructed in the exclusive economic zone or EEZ.
Source: Management Unit of the North Sea Mathematical Models, The territorial Sea and the Exclusive Economic Zone, Belgian Institute of Natural Science.
Under international law, the coastal state has the exclusive right to construct and to authorise and regulate the construction, operation and use of artificial islands, as well as installations and structures for wind energy production (See: the UN Convention on the Law of the Sea). Also, the coastal state has exclusive jurisdiction over such artificial islands, installations and structures, including jurisdiction regarding health, safety and immigration laws. Belgium implemented these principles in the 1999 EEZ Act, which explicitly states that Belgium has jurisdiction over the construction and use of artificial islands, installations and structures in the Belgian exclusive economic zone.
Must the service provider comply with Belgian legislation in the working relationship with its employees?
It would be too easy to conclude that Belgian legislation always applies when employees are engaged in a construction project in the Belgian EEZ. It often happens that (preparatory) construction and installation works are executed on board the vessel and not on the platform itself. The works that are executed on board the vessel are not automatically subject to Belgian legislation as Belgium only has jurisdiction over the platforms.
Therefore, the service provider should carefully assess which legislation applies, knowing that the work performed on the platform will in principle trigger the application of Belgian legislation, while foreign legislation applies for the work performed on board a non-Belgian flagged vessel.
This analysis should be made for the correct application of various types of legislation:
- Employment legislation
Determining the applicable employment legislation is important to comply with the applicable rules on minimum wages, working time restrictions, vacation legislation, etc.
Hard-core Belgian employment legislation will in any event apply from the moment the vessel crew accesses the offshore platform, even if their employment contracts include a specific choice of law clause in favour of non-Belgian employment legislation.
- Social security legislation
It is extremely important to apply the correct social security regime (and to obtain, if needed, A1-forms). Applying an incorrect social security regime may trigger significant financial liabilities. Furthermore, when Belgian social security legislation applies, the question arises whether the employer must proceed with a Dimona and/or Limosa declaration and with the so-called prior ‘declaration of works’.
- H&S legislation
The consequences of not complying with the applicable H&S legislation might be far-reaching, especially if an occupational accident occurs.
- Immigration legislation
Several questions arise, such as: Is the vessel crew subject to visa requirements? Do they need a work permit?
Conclusion
When employing workers on offshore sites in the Belgian Exclusive Economic Zone, service providers should verify the applicable employment, H&S, social security, and immigration regimes. Such a check is now even more important as the Belgian social inspection is increasingly focusing on this sector, especially because this sector is sensitive to “social dumping” practices.
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