Working with third parties
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The "Work by outside undertakings or self-employed persons" is referred to in Section 1 of Chapter IV of the Act of 4 August 1996 on well-being of workers in the performance of their work (hereafter referred to as the Well-being Act). This is commonly referred to as "working with third parties".
Section 1 of Chapter IV of the Well-being Act applies when all of the following conditions are met:
- the work/activities are performed by an outside undertaking or an external self-employed person (who are also defined in this context as "contractors" or "subcontractors");
- in the facility of an employer who himself employs workers there;
- on behalf of or with the consent of the employer of that facility;
- in accordance with the contract concluded with the employer of that facility or with a "contractor" (having entered into a contract with the employer of the facility) or with a "subcontractor" in the subcontracting chain of that "contractor";
- and outside a temporary or mobile construction site where the coordination rules specific to construction sites apply to relations between the businesses operating on the construction site.
Section 1 of Chapter IV of the Well-being Act sets out specific rules for coordination between the facility's employer and third parties to that facility (outside undertakings or self-employed persons) who carry out work/activities in that facility.
The purpose of these coordination rules is the well-being of workers and they are therefore established, among other things, to prevent occupational accidents and occupational diseases.
The presence of external persons - whether salaried workers or self-employed - and the work/activities they carry out may involve specific or increased risks for the workers of the employer in whose facility the work/activities are carried out by third parties.
The employer's facility and the employer's activities may present specific or increased risks to external persons who carry out work/activities there.
Notion of third party work/activities
In principle, the "work by outside undertakings or self-employed persons" referred to in Section 1 of Chapter IV of the Well-being Act concerns any work or activity . This work/activity may be the subject of a business contract or another contract such as a contract for renting a space.
Exception : Section 1 of Chapter IV of the Well-being Act (working with third parties) does not apply to building or civil engineering works and related activities to which the specific rules for the coordination of temporary or mobile construction sites (referred to in the Royal Decree of 25 January 2001 on temporary or mobile construction sites) apply.
Section 1 of Chapter IV of the Well-being Act (working with third parties) does apply to:
- building or civil engineering work that is carried out by a single contractor (without subcontractors) in the facility of the client/employer who employs workers there and which is not part of a larger project involving other building or civil engineering contractors;
- the assembly and dismantling of industrial installations in the facility of an employer who employs workers there, as well as operations on these installations.
Exception : work on these installations relating to foundations, concrete works, masonry and load-bearing structures and utility channels is subject to the specific rules on the coordination of construction sites if it is carried out by several building or civil engineering contractors or is part of a larger project involving several building or civil engineering contractors.
The "work by outside undertakings or self-employed persons" can take two forms:
1 st form : for the execution of certain works/activities in his facility, an employer uses other employers or self-employed persons. These employers or self-employed persons carry out work/activities in an employer's facility at the employer's request and on his behalf and within the framework of a contract.
These may be works/activities for which the facility's employer does not have sufficient knowledge or works/activities for which the facility's employer does have sufficient knowledge but which the facility's employer wishes to have carried out by third parties.
- A law firm with three workers uses an electrician (without subcontractors) for a new electrical installation because the office has no knowledge of the subject matter. The external contractor carrying out the electrical work will have to assume control of the risks related to his activity. The law firm/ facility's employer must take certain measures, for example, with regard to the building's fire safety.
- A large petrochemical company uses outside undertakings to carry out certain maintenance work on the machinery in his facility. It must duly inform the outside undertakings of the risks of petrochemicals, so that the outside undertakings can make the correct choices to limit the risks related to the maintenance itself and not present risks to the workers employed in the petrochemical company. Here, it is the responsibility of the facility's employer to ensure that the petrochemical risks are controlled. The (external) contractor, however, retains full responsibility for his own risks.
2 nd form : An employer makes (the infrastructure of) his facility, or part of it, available to other employers or self-employed persons and authorises them to carry out work/activities there. These employers or self-employed persons carry out work/activities in an employer's facility, within the framework of a contract, with his consent and without such work/activities being on behalf of the employer of this facility.
It is often a tenancy agreement that determines the conditions for the use of the infrastructure and the price that outside undertakings or self-employed persons must pay for this.
- In a venue where events are held, the facility's employer rents a site to a machine tools importer (the "contractor") who demonstrates the capabilities of the machines. The importer is fully responsible for controlling the risks specific to the demonstrations. The employer who operates the venue must, for his part, make arrangements concerning, for example, fire safety and a safe electrical connection.
- A hospital manager (facility's employer) authorises an independent physician to hold consultations or perform medical procedures in his facility. For this purpose, the facility's employer provides premises and equipment for the external physician. The external physician must comply with the arrangements that the employer of the facility (the hospital) has made to protect his staff (e.g. evacuation instructions, mandatory use of containers for used needles).
Notion of third parties/outside undertaking or self-employed person
The third party is an employer or a self-employed person who:
- carries out work/activities in an employer's facility;
- is external to this facility;
- is either a "contractor" or a "subcontractor" (specific definitions referred to in Article 8 of the Well-being Act).
The third party will be considered as a " contractor " when he carries out work/activities on behalf of the employer or with the employer's consent, based on the contract he has signed with the facility's employer.
For the execution of the works/activities, the contractor may also, in whole or in part, use other employers or self-employed persons. These are defined as "subcontractors". Subcontractors may in turn pass on all or part of the assignment to other subcontractors, etc.
The third party will be considered as a " subcontractor " when it carries out work/activities based on the contract he has signed with the aforementioned contractor or with a subcontractor in the subcontracting chain of the aforementioned contractor (subcontracting which will help to execute the initial contract concluded between the facility's employer and the contractor).
The "Contractor" and the "Subcontractor" carry out certain work in the employer's facility completely independently, on the employer's behalf or with the employer's authorisation. They do not therefore work "under the authority" of the facility's employer. Any workers of the contractor or subcontractor continue to work under the authority of their employer. Their employment contract is not modified and the facility's employer does not exercise any authority over them.
This situation is totally different from temporary work, where the employer signs an agreement with a temporary employment agency which makes his workers, i.e. temporary workers, available to that employer, who in this context is called the user.
Notion of the employer's facility
Article 8, § 2, 1° of the Well-being Act defines the employer's facility as "the geographically demarcated area that forms part of an undertaking or establishment and falls under the responsibility of an employer who him/herself employs workers there.
Plants operated by an employer are equated to facilities".
Installations which are operated by the employer are treated as facilities because it is not always easy for certain installations to define whether or not they are geographically defined, for example high-voltage cables suspended from towers, or because the employer does not routinely employ staff there, but they still carry a risk for workers from outside undertakings who might carry out work there.
Notions of employer and worker
These are the concepts defined very broadly in Article 2, § 2 of the Well-being Act.
- The facility's employer coordinates his activities and those of third parties in his facility. He has several obligations towards outside undertakings and self-employed persons.
- Third parties (contractors and subcontractors) cooperate with this coordination. They have a number of obligations to the facility's employer and to each other.
- Contracts with certain specific clauses must be concluded:
- between the facility's employer and each contractor he uses directly;
- between each contractor and his direct subcontractors;
- between each subcontractor and his own direct subcontractors, and so on until the end of the subcontracting chain.
Obligations referred to in Article 9, § 1 of the Well-being Act
- The employer must provide the necessary information to contractors for the attention of the workers of the contractors or subcontractors and for consulting on measures relating to well-being at work. In particular, this information concerns:
- the risks for workers' well-being and the protective and preventive measures and activities regarding both the facility in general and each type of workstation and/or position or activity, provided that this information is relevant to the collaboration or coordination;
- the measures taken for first aid, firefighting and the evacuation of workers, and the designated workers responsible for putting these measures into practice.
This is relevant information specific to the employer's facility and activities.
The facility's employer does not necessarily have to provide information on every work station, position or activity in his facility.
The provision of this information reduces the likelihood of accidents in the employer's facility, which is in the interest of the workers of third parties who come to work in the employer's facility and also the workers of the employer in whose facility the work is carried out by third parties.
The information provided by the facility's employer must be conveyed to the subcontractors through the contractor or subcontractor that commissioned the subcontractors to perform the work.
- The facility's employer must ensure that the workers of the contractors and subcontractors have received the appropriate training and instructions inherent to his professional activities (= the activities of the facility's employer).
- The facility's employer must take the appropriate measures to arrange a reception specific to his facility for the workers of contractors and subcontractors. To do so, he may assign the arrangement of this reception to a member of line management.
- The facility's employer must coordinate the intervention of contractors and subcontractors and ensure collaboration between such contractors and subcontractors and his facility when implementing measures concerning the well-being of workers in the performance of their work.
The obligation to take the initiative for coordination and cooperation lies expressly with the facility's employer, since it is the employer who is most familiar with the risks of his business and the preventive and protective measures that must be observed.
- The facility's employer must also ensure that contractors comply with their obligations regarding the well-being of workers in the performance of their work that are specific to his facility.
Obligations referred to in Article 9, § 2 of the Well-being Act
Article 9, § 2 requires the employer to reach an effective collaboration with the contractor.
Certain legal resources are provided to the facility's employer to enable him to meet his obligations.
- The facility's employer must exclude a contractor that it knows or ascertains to be in breach of the provisions of the Act on the well-being of workers and his implementing decrees (Art. 9, § 2, 1° of the Well-being Act).
This compliance or non-compliance can emerge from the following, for example:
- information that the employer requests from the contractor himself;
- a determination of whether or not the contractor meets certain requirements of the specifications;
- observations made during previous occasions when the contractor has attended the employer's facility;
- the fact that a company has a quality label such as the "VCA" certificate (Veiligheid-, gezondheid- en milieuchecklist Aannemers) – or "LSC" (Safety, Health and Environment Checklist for Contractors) – or the "BeSaCC" certificate (Belgian Safety Criteria for Contractors).
The exclusion of contractors means that the employer cannot enter into contracts with external contractors that he knows or ascertains to be in breach of the provisions of the Act on the well-being of workers, so that they cannot enter the employer's facility.
In the case of public procurement contracts, public procurement regulations must also be taken into account.
- The facility's employer must conclude a contract with each contractor containing at least the following clauses (Art. 9, § 2, 2° of the Well-being Act):
- the contractor's commitment to comply with and ensure that his subcontractors comply with his obligations regarding the well-being of workers in the performance of their work, which are specific to the facility where he carries out the work;
- the right of the employer of the facility where the work is carried out, if the contractor does not or inadequately fulfils his obligations under a, to take the necessary measures himself, in the cases determined by the contract, at the contractor's expense;
- the commitment by a contractor who uses subcontractors to carry out work at the employer's facility, to include in the contract(s) with such subcontractors, clauses which are similar to the two preceding clauses a and b. This means in particular that if the subcontractor does not comply or fails to comply properly with his obligations regarding the well-being of workers specific to the facility where the work is carried out, the contractor himself may take the necessary measures, in cases determined by the contract, at the subcontractor's expense.
Given that in most cases, the contractor already has a written contract with the employer regarding the work/activities to be carried out, the aforementioned clauses a, b and c can be included in this contract.
Although not expressly stated in the wording of the Article, the contract referred to in Article 9, § 2, 2° must be in writing. It is in the interest of both parties to draw up the contract in writing.
This contract is an important tool in accurately defining the rights and obligations of both parties.
At the same time, the contract gives the facility's employer a legal means to require the contractor to comply with his obligations regarding the well-being of workers in the performance of their work, which are specific to the facility where he carries out the work.
The contractor himself must take the measures, but if he has been negligent, the facility's employer has a contractual right to intervene.
By including this right in the contract, the facility's employer has a legal means with regards the contractor, which enables him to comply with the obligation imposed by Article 9, § 2, 3°, to take measures himself.
However, clauses a, b and c are a minimum and can be supplemented by more specific provisions, such as for example:
- a list of information to be provided by the contractor;
- a list of the obligations specific to the employer's facility that must be complied with by the contractor and subcontractors;
- how the contractor should fulfil these obligations;
- how the contractor's workers and subcontractors will be received on site;
- how the employer will ensure that the contractor's workers and subcontractors have received adequate training and instructions;
- how the employer can monitor whether the contractor has complied with the obligations;
- the consequences in the event of non-compliance with these obligations such as, in addition to the employer's right to take action himself, damages and dissolution of the contract;
- the option to charge the costs to the contractor and how to do so, if the employer has to take the action himself;
- how the formal notice is to be issued and to whom it is to be sent;
- the employer's obligation to take into account specific preventive measures that the contractor applies himself and which interfere with the measures specific to the employer's facility and how the contractor can force the employer to take these measures into account.
- If the contractor does not take the measures for workers' well-being specific to the employer's facility or does not completely fulfil his obligations and has therefore been negligent, the facility's employer must take the necessary measures himself, after formal notice to the contractor (Art. 9, § 2, 3°).
This provision means that the facility's employer must exercise some control over the activities of the contractor and any subcontractors.
This control may, for example, be exercised by having a representative of the facility's employer regularly visit the place where the work is carried out, by randomly questioning the workers of the contractor and subcontractors about the instructions to be followed, or by having a team leader supervise the work that is carried out by the contractor and subcontractors, when this work is carried out in a place in the facility where workers of the facility's employer are also working.
If the facility's employer ascertains that the contractor is negligent, he must give the contractor notice of default.
Notice of default is the formal warning served by the creditor (in this case the facility's employer) to the debtor (in this case the contractor), under which performance of the obligation is required. On the one hand, it is established that the contractor did not comply with his commitment because he did not take the necessary measures or did not comply with his obligations properly. On the other hand, he is given formal notice to carry out his obligations. The notice of default still gives the contractor the opportunity to fulfil his obligations. Although the facility's employer cannot therefore immediately intervene in place of the contractor, he can take precautionary measures and, for example, stop the work when there is an imminent danger. He can also require the contractor to resolve the situation in a very short time period.
The notice of default is a formal act. This means that it cannot solely be verbal, but that a written document is required. In principle, the notice of default is served on the contractor that is signatory to the contract, but it may also be served on persons who can validly represent the contractor, such as a representative or employee who exercises some of the contractor's authority.
Pursuant to Article 9, § 2, 2° and 3° and Article 10, § 2 of the Well-being Act, if a contractor does not comply with his well-being obligations specific to the employer's facility (possibly as a result of a breach by a subcontractor in the contractor's subcontracting chain), the facility's employer can and must himself, after notice of default to the contractor, take the necessary measures for the well-being of workers in the performance of their work specific to his facility, at the contractor's expense and in the contractor's place.
It is important to highlight that the obligation referred to in Article 9, § 2, 3° of the Well-being Act only concerns the measures necessary for well-being specific to the employer's facility where the contractor carries out work/activities.
These are therefore in fact obligations that arise from the risks of the facility's employer and which may threaten the well-being of his own workers. The responsibility of the facility's employer relates to these elements and not to the obligations that arise from the contractor's own risks. The contractor remains responsible for the well-being of his own workers.
For example, the following may be considered as obligations specific to the facility: fire safety measures and personal protective equipment specific to the facility. However, health supervision measures are generally not inherent to the employer's facility.
The practical application of this legislation will tell us whether it is necessary to specify the distinction between obligations specific to the employer's facility and obligations specific to the contractor by Royal Decree. Article 12 of the Well-being Act provides for this possibility.
Furthermore, the practical provisions concerning the collaboration between the facility's employer and the external contractor when investigating serious occupational accidents that have occurred at the employer's facility, the competent prevention services which will investigate such serious accidents and the settlement of any costs which may arise from these investigations must, in accordance with Art. 94b, § 2, subparagraph 2, of the Well-being Act, be included in specific clauses of the contract concluded between the facility's employer and the contractor.
The contractor or subcontractor not only has obligations towards the facility's employer (Art. 10, § 1, 1°, 3° and 4° of the Well-being Act) but also towards his subcontractors (Art. 10, § 1, 1° and 2° and § 2 of the Well-being Act) to:
- comply with the well-being at work obligations specific to the facility where the work is carried out and ensure these are complied with by his subcontractors;
- provide his workers and subcontractors with information on well-being at work relating to the risks and preventive measures specific to the facility where the work is carried out (information initially communicated by the facility's employer to the contractor);
- provide the facility's employer with the necessary information relating to the risks specific to his work/activities to be carried out at the employer's facility;
- lend his cooperation to the coordination and collaboration organised by the facility's employer;
- exclude subcontractors that he may know or ascertain to be in breach of the legislation on the well-being of workers in the performance of their work;
- enter into a contract with each subcontractor which includes at least the clauses concerning:
- the subcontractor's commitment to comply with, and to ensure any of his subcontracts comply with, his well-being at work obligations which are specific to the facility where the activities are carried out,
- the right of the contractor/subcontractor to take the necessary measures himself, if the subcontractor does not comply or fails to comply properly with his obligations, in cases determined by the contract, at the subcontractor's expense,
- the commitment of a subcontractor who uses other subcontractors to include in the contract with such subcontractors, clauses which are similar to the two preceding clauses a and b.
- take the necessary measures himself, if his subcontractor does not comply or fails to comply properly with his obligations of well-being at work that are specific to the facility where the work is carried out, and after formal notice has been given to the subcontractor.
The legal obligations and means of subcontractors towards their direct subcontractors are mutatis mutandis the same as those between the contractor and his direct subcontractors.
In the event of default by the subcontractor's subcontractor, the latter must, pursuant to Article 10 § 2, take the measures himself in place of and at the expense of his subcontractor. If, in respect of this obligation, the contractor's subcontractor remains in default in his turn, it is the contractor who must, as a result of his penal obligation referred to in Article 10, § 2 and his contractual obligation, take the measures in place of and at the expense of his defaulting subcontractor. If, in respect of this obligation, the contractor remains in default in his turn, it is the facility's employer who must, as a result of his penal obligation referred to in Article 9, § 2, 3° and his contractual obligation with the contractor, take the necessary measures.
Article 11 of the Well-being Act authorises a contractor or, where appropriate, a subcontractor to agree with the employer of the facility where he carries out work, that the facility's employer ensures, in the name and on behalf of the contractor or subcontractor, compliance with measures relating to the well-being of workers when carrying out their work specific to the facility.
The facility's employer then becomes the contractor's representative, but the contractor retains responsibility for the protection of his personnel.
For example, this may also be useful if the employer has specific protective equipment and related expertise that is applicable in his facility and which the contractor logically does not acquire given his single intervention with the employer.
Article 12 of the Well-being Act gives the King the option to issue implementing decrees to determine certain rules or more specific conditions. To date, the King has not yet issued any such implementing decrees. However, articles 8 to 11 of the Well-being Act are indeed applicable.
To a certain extent, Article 12, § 3 of the Well-being Act allows certain conditions to be stipulated by collective labour agreement.
The following are punishable under Article 130 of the Social Criminal Code:
- the facility's employer, his employee or representative who has committed an infringement of Art. 9, § 1 or § 2 of the Well-being Act;
- contractors and subcontractors, their employees or representatives who have committed an infringement of Article 10, § 1 or § 2 of the Well-being Act.
Different types of criminal sanctions :
- level 3 sanction (criminal or administrative fine);
- or level 4 sanction (imprisonment, criminal or administrative fine) when they have resulted in health problems or an occupational accident for a worker;
- possibly, if the judge so decides, prohibition to operate, prohibition to practice or closure of the business.
More information on criminal sanctions can be found in French under : Topics > Well-being at work > General principles > Supervision and sanctions related to Well-being at work.
There are other types of possible sanctions : contractual, disciplinary, ordinary criminal law (e.g. Articles 418 to 420 of the Criminal Code, which relate to homicide and involuntary bodily harm for lack of foresight and precaution), ...
- Firstly, with the prevention advisor of the internal and/or external service for prevention and protection at work.
- Secondly, with the competent regional directorate for Supervision of Well-being at Work.
- Questions on the interpretation of the legislation: in writing to the Directorate-General for Humanisation of Labour.