Belgian law prohibits the loan of manpower – exceptions further developed by new legislation
This prohibition also applies to companies who belong to the same economic group. However, to the principle of forbidden loan of manpower several legal exceptions apply. One of these exceptions has recently been further developed by new legislation.
The Act of 24 July 1987 principally prohibits that employees are hired out by their employer to a third party user whereby (part of) the employer’s authority is exercised by the third party user. The Act also foresees the circumstances and conditions under which a loan of manpower is allowed.
As foreseen by the Act of 12 August 2000, Belgian employers can group in a separate autonomous legal structure in order to employ personnel as a group. The employees of the group can be transferred within the group according to the needs of each company/member of the group.
The employers’ group is another exception to the forbidden loan of manpower (as stipulated in the Act of 24 July 1987).
By the Act of 25 April 2014 and the Royal Decree of 8 July 2014, the Belgian legislator has provided more flexibility for employers to group and to transfer hired employees within this group. It is now possible to:
- legally structure the employers’ group as an economic cooperation or as a non-profit association;
- hire employees for specific work, a full-time employment or a part-time employment (with a minimum of 19 hours a week);
- hire any employee (and no longer only long-term unemployed persons who benefit from an unemployment allowance or persons who benefit from a welfare allowance or financial social assistance);
- A written employment contract between the employers’ group and the employee has to be concluded and has to refer to the fact that the contract is concluded for the purpose of transferring within the employers’ group. Apart from that, the normal labour law principles apply.
As to the competent Joint Committee, the Federal Public Service for Employment, Labour and Social Dialogue will appoint the competent Joint Committee for the employers’ group. If all employers/members of the group belong to the same Joint Committee, this Joint Committee will be the competent Joint Committee. If different Joint Committees are competent for the members of the group, the competent Joint Committee will be appointed by the Federal Public Service following the criteria which should still be determined by a collective labour agreement concluded by the National Labour Council.
As to the termination of the employment contract, the regular notice periods apply (except in the event that specific categories of employees terminate the employment contract).
Further, it has to be noted that employers/members of the employers’ group are jointly liable for all tax and social debts related to the employees of the employers’ group towards third parties.
Finally, it is important to note that the employers’ group has to request permission from the Ministry of Work before transferring employees. The Ministry will obtain advice from the National Labour Council in this respect.
The due date to obtain a permission is currently set at 30 June 2015. As from 1 July 2015, no additional permissions will be given and the system will be evaluated. Permissions that are obtained before 1 July 2015 will however remain valid. Companies who would like to set up an employers’ group are advised to take the necessary steps now. Upon request, we can further advice and assist with respect to the setup and participation to an employers’ group