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Posting - hiring out of workers

Hiring out of workers

Definition

By "hiring out of workers" is meant a situation which 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

As 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 :

  1. instructions given by this user to comply with his/her legal obligations regarding health and safety.
  2. 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 workers;
  • 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 workers

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.

  1. 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 entity, or
    in case of temporary performance of specialized tasks requiring a specific professional qualification, or
     
  2. 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 limited duration

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

  1. The user is deemed to be linked to the worker under an open ended employment contract from the commencement of the performance of work.
  2. 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°.
  3. 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.

FPS Employment, Labour and Social Dialogue

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