Permitted motives for temporary work
Principle of permitted temporary employment
Temporary employment is an effective way of meeting staffing needs. It offers great flexibility for both the employer and the employee. However, there are also strict rules related to agency work. The cases in which temporary employment can be used are strictly defined by law. Only in those cases is temporary work possible. This is also referred to as the motives for temporary work. The purpose of this is to protect both temporary agency workers and permanent employees.
The permitted reasons for employing a temporary employee are as follows:
- the replacement of a permanent employee
- the temporary increase of work;
- to carry outexceptional work;
- carrying outartistic services;
- employing a temporary worker with a view to permanent recruitment (intake).
Specific conditions are provided for each of these reasons. The duration of the permitted agency work and the procedures differ according to the reasons for which agency work is used.
Permitted reasons for using agency work
Replacement of a permanent employee
A number of principles must be taken into account when replacing a permanent employee:
- The temporary worker must belong to the same professional category (blue-collar or white-collar) as the employee he is replacing;
- A temporary worker may only replace a salaried employee (i.e. not a self-employed person);
- The employment system of the temporary worker may not exceed that of the worker to be replaced;
- A permanent worker may be replaced by several temporary workers as long as the employment system of the permanent worker is not exceeded;
- A limited period of overlap is allowed between the start date of the temporary worker and the date on which the permanent worker leaves the company.
Moreover, a distinction must be made between the replacement of an employee whose employment contract has been temporarily suspended (maternity leave, illness, leave, etc.) and the replacement of an employee whose contract has been terminated. In the latter case, the procedure also differs depending on whether the contract was terminated for an urgent reason or by notice, or whether the employment contract was terminated for another reason.
There are also different procedures depending on whether or not there is a union delegation in the company.
If there is a trade union deleg ation in the company, an agreement must always be reached before the start of the employment contract. As soon as the user has received the agreement of the trade union delegation, he/she must inform the Social Law Inspectorate within three working days.
If no union delegation is present , the temporary employment agency will notify the Social Fund for Temporary Employees. The Social Fund for Temporary Workers shall in turn pass on the information to the representatives of the workers' organisations sitting on the Board of Directors. The latter may ask the temporary employment agency in writing to reduce the duration of temporary work.
Temporary increase in work
Temporary increase of work" means all activities that increase the normal activity of the company. This can be interpreted broadly.
Here too, the procedure differs depending on whether or not there is a trade union delegation in the company.
Exceptional work
"Exceptional work" includes all activities that are not part of the 'normal' activities of the business. Some examples are:
- Work related to the preparation and operation of trade fairs, congresses, exhibitions, seminars, events, surveys, etc;
- Secretarial work for business people temporarily residing in Belgium;
- Work in the context of an unforeseen or imminent accident, urgent work on machines or equipment, urgent and necessary work;
- Inventory and balance sheet work,
- ….
No agreement from the trade union delegation is required for this work , provided it does not last longer than 3 months . If it appears that the work will last longer, a new procedure must be followed. This procedure and the maximum duration during which the user may call upon a temporary worker vary according to the reason for the exceptional work. There is also a different procedure to follow depending on whether or not there is a trade union delegation present. Do not hesitate to contact us if you have specific questions about this.
Entry ('temporary work with a view to permanent employment')
Motif "inflow" is an additional motif since 2013. This motive is used with the intention of permanently hiring a temporary worker after the interim period. This allows both parties to get to know each other better. The user can test the skills and attitude of the temp. The temporary worker gets to know the working environment.
Please note: motive influx is not the only motive after which a temporary agency worker can be employed permanently. If a temporary agency worker proves to meet expectations, he may also be hired if he has the motive of temporary increment, suspension or another motive. The one does not exclude the other.
The great advantage of the inflow motive is that it does not require the consent of the trade union delegation. is required. The user only has to inform and consult the trade union delegation beforehand.
However, it is important that a number of specific rules are observed:
- The 3-6-9 rule: Maximum 3 attempts, i.e. maximum 3 temporary workers, to fill the vacancy. A temporary worker may be employed for a maximum of 6 months for this reason. The total period of all attempts may not exceed 9 months.
- After 6 months (or 9 months of the total period) the temporary employment contract can no longer be extended. At that point the decision will have to be made whether or not to employ the temporary agency worker on a permanent basis. It is not mandatory to offer the temporary worker a contract, but in that case he is entitled to feedback from the temporary agency.
- If the temporary worker is hired after the interim period, he must be given a permanent contract. An exception to this rule can only be made in certain cases where an agreement has been reached at sector level.
- The user should always inform the temporary agency about the number of attempts that have already been made. If the number of attempts or the duration is exceeded, the contract will automatically be converted into a permanent contract with the user.
- To calculate the duration, only the periods of activity of the temporary worker are taken into account. Periods during which the temporary worker was not under contract are therefore not taken into account.
- Attempts interrupted by the temporary worker himself (contract terminated by the temporary worker or dismissal for compelling reasons) are not taken into account.
- Prohibition of daily contracts. Weekly contracts must always be drawn up. An exception is made if the temporary worker starts work during the week. In that case there is no problem.
- If the temporary worker gives up a permanent job in order to start an interim assignment with the motive of entering, he is entitled to a monthly contract for the first contract. In this way he is assured of a minimum employment period of one month. After this first month, they will receive weekly contracts.
Decision
When employing a temporary worker, one should always carefully consider the motive that can be used. Sometimes several motives are possible. In that case, a choice must be made.
However, it is important to respect the rules applicable to each motive as non-compliance with these rules may result in sanctions.
Sources and info: Federgon, werk.belgie.be
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