Initially, temporary work was instituted in the law as a means to cope with exceptional working situations. An employer was only allowed to make use of the system in three limited situations, i.e. replacement of a fixed employee (whose employment contract is suspended), in the case of a temporary increase in work or for carrying out exceptional work.
Practice has shown that temporary work has become more and more successful over the last few years. In fact, it is these days often viewed as a way for employers to identify the skills of potential new employees and for temporary workers to get to know a given place of work.
Employers’ and employees’ organisations in Belgium have been aware of the need to adjust the Belgian legislation on temporary work to current practices. By the Act of 26 June 2013 and Collective Bargaining Agreement no. 108, new rules have been brought in. These changes came into force on 1st September 2013.
The key changes are:(1) a new ground can be cited for using temporary workers, called ‘inflow’, (2) it is possible to enter into successive day contracts for interim work, (3) obligations to consult with representative bodies with regard to temporary work (4) repeal of the 48-hour rule for signing an employment contract for temporary work.
These changes are discussed in detail below.
1. ‘Inflow’ as a new ground
The most important innovation in the 26 June 2013 Act is the addition of a new ground for employing temporary workers, i.e. ‘inflow’; in other words, filling a vacancy within the company.
This new ground allows a temporary employee to be supplied by a third party (‘the temporary work agency’) to a company (‘the user’) to fill a vacancy within the user’s business, with the intention that the user should hire the temporary employee under an open-ended employment contract in the same position once the period of temporary work comes to an end.
A) Workers employed for ‘inflow’ reasons
Collective Bargaining Agreement no. 108 sets down several limitations to avoid companies abusing the new ‘inflow’ ground by indefinitely relying on temporary workers supplied by a third party to always fill the same vacancy, without ever offering a permanent job:
there may be no more than three attempts to fill a given vacancy with ‘inflow’ temporary employees supplied by a third party;
each attempt to find an ‘inflow’ temporary employee should be for a minimum of one week but may not exceed six months;
for each vacancy, a company is only allowed to use ‘inflow’ temporary employees for a maximum of nine months.
B) Prior information and consultation obligations
The following information and consultation obligations should be adhered to by the company before making use of ‘inflow’ as a ground for temporary work:
information to and consultation of the trade union delegation before the company decides to use ‘inflow’ temporary workers. The consultation must cover the reasons for using temporary workers on this ground and the vacancies that the temporary workers will occupy;
information to the temporary work agency on the number of temporary workers attracted to fill in the vacancy. The temporary work agency has in turn to state this information in the contract with the temporary worker. If the company gives the temporary work agency false information in this respect and, as a consequence, more than three ‘inflow’ temporary workers are subsequently hired to fill in the same vacancy, the company will be bound under an open-ended employment contract with the fourth ‘inflow’ temporary worker.
C) Employment guarantee
An employee quitting an open-ended employment contract with his employer in order to work as an ‘inflow’ temporary worker is given an employment guarantee of one month by the temporary work agency.
D) Conditions for definitive recruitment of the temporary worker by the user company
The company is not obliged to hire the ‘inflow’ temporary worker but, if it does, it must comply with the following conditions:
the employment contract must be entered into for an open-ended term;
if the worker is hired for the same position he occupied during his temporary “inflow” employment, the period for which he worked as a temporary employee must be taken into account for the purposes of all legal provisions and agreements that refer to seniority within the company (e.g. for the granting of a bonus or premium). However, the Act sets out an important exception to this principle: the general rules on notice periods remain unchanged. They provide that no more than one year’s seniority as a temporary worker can be taken into account to determine the notice period if the worker is permanently hired by the user company directly after the period when he worked as a temporary worker and if he is hired for the same duties he carried out as a temporary worker.
if a probationary period is inserted into the employment contract, its length should be reduced by the period during which the employee worked as an ‘inflow’ temporary employee.
2. Successive day contracts
In order to combat abuse by signing successive one-day contracts for interim work (for example, in order to avoid paying severance pay in case of termination), the Act introduces an important new provision on successive day contracts. Such successive day contracts for temporary work with the same user are as from 1st September 2013 only allowed provided that the user can prove the need for flexibility offered by using such successive day contracts.
If it cannot, the temporary work temporary work agency will be liable to pay an indemnity equivalent to two weeks’ wages under a temporary employment contract on top of the normal wages it owes the worker employed under successive day contracts.
3. Consultation and information of representative bodies
Collective Bargaining Agreement no. 108 provides for extended consultation with and information to the trade union delegation within the user company with respect to temporary employment. Previously, trade unions only received general information on temporary work. Under the new Act, the user must provide the works council with information on the number of temporary employees hired by the company and their activities every six months or, if the company has no works council, the trade union delegation. The main goal of this information is to allow trade unions to gain a better understanding of the use of temporary work in the company and to uncover possible difficulties faster.
4. Phased cancellation of the 48-hour rule
The so-called '48-hour rule' allows an employment contract for temporary work to be set down in writing within two working days after the start of employment by the temporary worker . This rule deviates from the general rule which provides that a fixed-term employment contract has to be signed no later than the moment of entering into service and offers more flexibility which is inherent to temporary work.
In order to ensure the temporary employer knows his employment conditions in advance, employers’ and employee’s organisations now agreed in their draft agreement of 23 January 2012 to set up a technical working group, which will in time allow the so-called 48-hour rule to be done away with. No timing has been fixed yet.
