The general principle is that all housekeeping staff working legally in Belgiummust be registered with Belgian social security. However, the Vienna Conventions on Diplomatic and Consular Relationsprovide an exemption from registration in the Belgian social security as a ‘privilege’ for private servants.
The employment of private servants does not be registered with Belgian social security authorities if:
- The employee does not have Belgian nationality or is not a permanent resident of Belgium.
- The employee is registered with social security in the sending state or a third country.
If neither of these two conditions are met, the private servant must be registered with Belgian social security and the employer must provide a certificate of registration and proof of enrolment with a healthcare insurer or the HZIV (Auxiliary fund for sickness and disability insurance).
According to the instructions in the protocol guide, a private servant should also be able to access Belgian social security:
- If the employee is registered in the social security system of another country with which Belgium has a bilateral agreement with regard to social security.
- If the employer voluntarily registers the employee with Belgian social security.
If the private servant is exempt and denied access to Belgian social security, all medical expenses (medicines, consultations and hospitalisation) must still be insured. The employer will have to take out private medical insurance in the employee’s name.
The employer will also have to take out insurance against accidents at work and insurance to cover any necessary repatriation.
A discussion on social security
There is currently a discussion about the exemption provided for housekeeping staff by the Vienna Conventions. These treaties regulate diplomatic and consular relations, but they are in no way labour conventions. On the other hand, labour law in Belgium with regard to the employment rights of domestic staff has evolved significantly in recent years. Not only that, Belgium has ratified a special international labour treaty for domestic staff that disputes the legality of the exemption in the Vienna Conventions:
Conventie C189 voor het huishoudpersoneel
In 2011, the International Labour Organisation approved Convention C189 with regard to the dignified work of domestic staff. This convention, in force in Belgium since 2016, determines minimum employment standards for domestic staff. Among other things, the convention provides that member states must take the necessary social securitymeasures in order to ensure that domestic staff can enjoy conditions that are no less favourable than those that apply to all employees.
Convention C189 is an employment rights convention that determines standards for a specific group of employees. The Vienna Conventions are not employment rights conventions, but international instruments that exclusively govern diplomatic and consular relations. Consequently, and on the basis of the legal principle of lex specialis derogat legi generali, Convention C189 must take precedence over the Vienna Conventions as special legislation.
In the context of the implementation of Convention C 189 in Belgian legislation, all servants must be subject to social security just as ‘ordinary’ employees since October 2014. The regulation was modified to offer them the same social protection as other employees.
In 2018, the law governing collective labour agreements and the joint labour committes was amended. Thanks to this amendment, non-privileged staff of diplomatic missions have the right to all employment conditions as determined by the collective labour agreements of the Belgian joint labour committees. This amendment in the legislation therefore also applies to diplomatic housekeeping staff and they have the same status as housekeepers (Joint Labour Committee 323).
In practice, we have found that diplomatic domestic staff employers are exempt from declaring to Belgian social security, even if the employee is not registered with any other social security system. Employment is approved solely on the basis of private medical insurance. Medical expenses may be covered but no social rights are accumulated. After ten years of work, diplomatic domestic staff may no longer be employed. Not only are they obliged to leave Belgium, but they must do so without a pension, child allowance, etc.
For years, FAIRWORK Belgium has been advocating for effective access to Belgian social security for diplomatic domestic staff. Based on current Belgian legislation and the Convention C189 in force in Belgium, our professional opinion is that the declaration of diplomatic domestic staff to social security is the employer’s duty and that the exemption provided by the Vienna Conventions is no longer legal in the Belgian context. However, this has yet to become a court proceedings subject that is able to provide an indisputable precedent.