By "hiring out of workers" is meant a
situation where a worker is lent out by his employer to a user who makes that
worker work within his undertaking and exercises over that worker a part of the
employer's authority that is normally exercised by the actual employer.
General principle : prohibition of hiring out of
workers in Belgium
This situation may give rise to abuse: the worker may not earn the wage/salary to
which he would normally have been entitled if he had been engaged by the user
as a permanent employee.
For this reason, it is in principle prohibited in Belgium to hire out
This prohibition is laid down by the Act of 24 July 1987 on temporary
work, temporary agency work and hiring out of workers for the benefit of users.
Limitation of the prohibition of
hiring out of workers
provided by the Act of 24 July 1987, a user of hired out workers is not
considered as exercising the employer’s authority on these workers in the two
following cases :
- instructions given by this user to comply with
his/her legal obligations regarding health and safety.
- other instructions given
by the user but provided that the following conditions are all met :
- the instructions must be provided by a written
convention concluded by the user and the employer of the hired out
- such a written convention must contain an explicit
and detailed description of these instructions;
- the factual implementation
of this convention must entirely correspond to its provisions;
- the instructions do not
undermine the employer’s authority.
The instructions referred to
in points 1° and 2° will not be considered as an exercise by the user of a part
of the employer’s authority and therefore there will be no prohibited hiring
out of workers in the two aforementioned cases.
Nonetheless, and on the
contrary, any instruction which would not comply with the aforementioned
conditions would be considered as an exercise by the user of a part of the
employer’s authority by the user and as a prohibited hiring out of workers.
Information obligations incumbent on the user in case of written convention
Where the user of hired out workers has
concluded with their employer a written convention providing for the
instructions which can be given by the user to these workers, the Act of 24
July 1987 and the Royal Decree of 17 July 2013 provide for specific obligations incumbent on the user.
1. The user must immediately inform, by written document ou electronically, the secretary of its works council of the conclusion of such a convention. The secretary shall then inform the members of the works council thereof.
Where no works council exists in the using company, this user must provide the aforementioned information to the person designated for that purpose by the rules of procedure of the Committee for Prevention and Protection at work.
Where this Committee does not exist, the user must provide for this information to the members of the union delegation.
2. The user must also provide to the members of the works council, the Committee for Prevention and Protection at work or the union delegation who request it, a copy of the part of the abovementioned convention which provides for the instructions which the user can give to the workers who are hired out.
In case of such a request, the information shall be provided within fourteen calendar days or, whether the written convention has a shorter duration, before the end of the said convention.
If the user, after having been requested as aforementioned, refuses to provide for that copy, the written convention will be deemed to be non-existent and the hiring out of workers will be therefore prohibited.
Derogations from the prohibition on hiring out of
Even in case of prohibited hiring out of workers
within the meaning of the Act of 24 July 1987, there are two legal derogations
to such a prohibition.
- On basis of the preliminary information of the
Social Legislation Inspectorate (in
French language or
in Dutch language):in case of
collaboration between two undertakings of the same economic and financial
in case of temporary performance of specialized
tasks requiring a specific professional qualification, or
- on basis of consent of the Social
Legislation Inspectorate (in French language or in
Dutch language), given after agreement of the social partners of the
user concerning this hiring out of workers.
NB Please note that the conditions and duration of the
hiring out referred to in points 1° and 2° must be in principle evidenced in
writing by the user, the worker who is hired out and his/her employer.
Moreover, the hiring out of workers must have a
Furthermore, workers who are hired out are entitled to
the same remuneration, compensation payments and social benefits as the
permanent workers carrying out the same functions within the user undertaking.
Lastly, it has also to be pointed out that in the two
abovementioned cases, the user is jointly liable for payment of remuneration,
compensation, social benefits and social security contributions arising from
the employment contract concluded by the workers who are hired out to him/her.
Sanctions in case of prohibited hiring out of workers
- The user is deemed to be linked to the worker under
an open ended employment contract from the commencement of the performance of
- The user and the person who hired the workers out
are jointly liable for payment of remuneration, compensation, social benefits
and social security contributions arising from the open ended employment
contract mentioned in point 1°.
- Employers who, contrary to the law, hire out to
third parties may be prosecuted under penal law (or administrative fines can be
imposed). The same applies to users who, contrary to the law, employ workers
posted to them.