Hiring out of workers

Definition

By "hiring out of workers" is meant a situation in which a worker is lent out by his employer to a user who makes that worker work within his company and exercises over that worker a part of the employer's authority that is normally exercised by the actual employer.

For example : a Croatian construction company is lending one of its workers to a Belgian construction company user. 

General principle : prohibition of hiring out of workers in Belgium

In practice, this situation may give rise to abuse: the worker may not earn the salary to which he would normally have been entitled if he had been hired by the user as a permanent worker.

For this reason, it is in principle prohibited to hire out workers in Belgium. 

Difference between the hiring out of workers on the one hand and subcontracting and service contract on the other hand

What about the instructions given to workers posted to Belgium regarding the performance of activities in a company established in Belgium, within the framework of the performance of a subcontracting contract or a service contract?

It does indeed happen that posted workers carry out certain work in another company established in Belgium or provide certain services there on behalf of and on the orders of their employer.

In this respect, we are thinking, for example, of the cleaning of company premises, the maintenance of machines or installations, the construction assembly, the buildings surveillance, the installation or management of IT applications, the accounting, the execution of subcontracting work on a construction site.

In such cases, the question arises as to the extent to which the user company (customer) can give instructions to the workers of the service provider (contractor) without infringing the prohibition of hiring out of workers.

For the purpose of clarifying this matter, Belgian legislation allows a distinction to be made between, on the one hand, a subcontracting relationship or provision of services and, on the other hand, a prohibited hiring out of workers.

In this regard, the following principles apply: 

1. A user (customer) who uses a service provider (contractor) can always give the workers of this service provider instructions regarding the requirements about well-being at work which apply in his company (e.g.: safety instructions).
    
2. Further instructions may only be given to the workers of this service provider by the user if the following conditions are met:

• the instructions must be provided for in a written agreement concluded by the user and the employer of the aforementioned workers;
• such a written agreement must include an explicit and detailed description of these instructions;
• the actual implementation of this agreement must be entirely in line with its provisions;
• the instructions must not undermine the employer's authority of these workers.

These two types of instructions referred to in points 1° and 2° will not be considered as an exercise of the employer's authority and, as a consequence, there will be no prohibited hiring out of workers within the meaning of Belgian Labour Law in such cases.

On the other hand, any instruction which would not comply with the aforementioned conditions would be considered as an exercise of the employer's authority by the user and thus as prohibited hiring out of workers.

Information obligations incumbent on the user in case of written convention

When the user of hired out workers has concluded with their employer a written agreement 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. 

Derogations from the prohibition on hiring out of workers

Even in case of prohibited hiring out of workers, two derogations from such a prohibition are nevertheless allowed. 

1. With an authorization give, to the employer by the Supervision of Social Laws (in French language or in Dutch language). 

   The authorization of the Labour Inspectorate is only given if the trade union delegation in the company of the user gives its unanimous agreement concerning the hiring out of workers.

   In the absence of a trade union delegation or in case of disagreement within the latter, the agreement (also unanimous) must then be given by the union organizations which are represented on the Joint Committee to which the company belongs.

2. With preliminary information of the Supervision of Social Laws by the user (in French language or in Dutch language) :

• either in the case of collaboration between 2 companies of the same economic and financial entity.
  
  This refers to collaboration between a parent company and a subsidiary or between two subsidiaries or companies, each with legal personality but which are economically and financially dependent on each other;
   
• or in the case of temporary performance of specialized tasks requiring a specific professional qualification.
  
  This refers to the temporary performance of specialized tasks that require a specific professional qualification but for which it would not be profitable for the user company to recruit its own staff.

NB: Please note that the conditions and duration of the hiring out referred to in points 1° and 2° must, in principle, be recorded in writing signed by the user, the worker who is hired out and his employer.

Moreover, the hiring out of workers must have a limited duration. It is therefore not possible to hire out workers for several years or for an indefinite period.

Furthermore, posted workers who are hired out are entitled to the same remuneration, allowances and benefits as the permanent workers carrying out the same functions within the company of the user.

Lastly, it must also be pointed out that, in the two aforementioned cases, the user is jointly liable for the payment of remunerations, allowances, benefits and social security contributions arising from the employment contract of the workers who are lent to him.

Sanctions in case of prohibited hiring out of workers

1. The user is presumed to be linked to the worker by an employment contract concluded for an indefinite period, from the start of the performance of the work;
    
2. The user and the person who hires the workers out are jointly liable for the payment of remunerations, allowances, benefits and social security contributions arising from the employment contract concluded for an indefinite period mentioned in point 1°;
    

3. Employers who, despite the law, hire out their workers to third parties may be prosecuted under penal law (or administrative fines can be imposed).  The same applies to users who, in breach of the law, employ hired out workers.