Temporary employment is a form of temporary work permitted by law that is performed by a worker (the temp) for the account of an employer (the temp agency) at a third party (the user).
In Belgium, temp agencies are subject to prior authorisation without which a temp agency cannot lawfully engage in temping activities. The rules relating to authorisation conditions and procedures fall within the competence of the different Regions (Flemish Region, Walloon Region, Brussels Capital Region).
Temping is regulated by federal law in the Act of 24 July 1987 on temporary work, temporary employment and the posting of workers for the benefit of users.
Temping is possible only for the execution of types of temporary work permitted by law. The main cases of temporary work permitted by law are as follows:
- for the replacement of a permanent employee
- to meet the demands of a temporary increase in work
- to ensure the execution of exceptional work
For temporary work, two agreements have to be concluded. The intention to conclude an employment contract for temporary work must be laid down in writing no later than on the date when the worker enters the service of the temp agency for the first time. The employment contract for the temporary work itself must be laid down in writing no later than within two working days from the date on which the worker enters into the user's service.
An agreement for temporary work is always presumed to be an employment contract.
During the period of temporary work, the temp is entitled to the same wage/salary as that which he would have had if he had been taken on by the user as a permanent employee.
In particular cases, it is prohibited to make use of temping services. This applies when there is a strike or lock-out in the user's undertaking. Temping is also forbidden in a limited number of sectors.
Hiring out of workers
By "hiring out of workers" is meant a situation which a worker is lent out by his employer to a user who makes that worker work within his undertaking and exercises over that worker a part of the employer's authority that is normally exercised by the actual employer.
This situation may give rise to abuse: the worker may not earn the wage/salary to which he would normally have been entitled if he had been engaged by the user as a permanent employee.
For this reason, it is in principle prohibited in Belgium to post workers. This prohibition is laid down by the Act of 24 July 1987 on temporary work, temporary employment and the posting of workers for the benefit of users.
Derogation from this prohibition on hiring out of workers is possible only in accordance with conditions laid down by law.
Employers who, contrary to the law, post their workers to third parties may be prosecuted under penal law. The same applies to users who, contrary to the law, employ workers posted to them.
In such cases, the user may also be deemed to be linked to the worker under an employment contract for an indefinite period from the commencement of the performance of work.
Source: Federal Public Service " Employment, Labour and Social Dialogue"
