- Leila Mstoian - Marcel Houben
Temporary employment still is a booming sector.
Initially, temporary workers could be called in for 1) the replacement of an employee, whose contract was suspended, 2) the replacement of an employee whose contract had come to an end, 3) in the case of a temporary increase of the workload, and 4) for the performance of exceptional work.
More recently, the use of temporary employment has been authorized as a vehicle to test candidates for permanent employment (the substitute for the probation period).
The statute "Workable and Flexible Work" is now promoting temporary work by providing the possibility for temporary work agencies to enter into contracts with the temporary workers for an unlimited duration.
Up to now, for each temporary work assignment, a separate agreement was, in principle, entered into between the temporary work agency and the temporary worker. So, each of these agreements is a “one shot” temporary employment agreement.
The statute "Workable and Flexible Work" has now provided for the possibility for the temporary work agency and the temporary worker to enter into a temporary employment agreement for an unlimited duration. So, this agreement will cover various consecutive assignments of the temporary worker.
Some items have to be worked out in further detail by collective labour agreements entered into within the framework of the joint labour-management committee for temporary work. Therefore, the new stipulations will become effective only when these collective labour agreements have been rendered compulsory by royal decree.
The industrial relations partners, and particularly the trade unions, are not very happy about the fact that the legislator took this initiative concerning temporary work, because they consider themselves to have been the driving forces in connection with regulations concerning temporary work and they are convinced that it should stay that way.
The temporary employment agreement for an unlimited duration must include the general terms
relating to the performance of the temporary assignments, the work time, which shall apply to the
temporary worker, and a description of the various jobs, which may be covered by the temporary
The description of these various jobs is rather important because the temporary worker is expected to accept each temporary assignment, which is compatible with the jobs listed and described in the agreement.
What the consequences are / can be for the temporary worker, who wrongly refused a temporary assignment, is not clear. Could such a refusal qualify as "just cause" (refusal to perform work)? An argument in favour could be made, in our opinion, particularly since, as explained below, the temporary worker is entitled to a compensation, payable by the temporary employment agency, for each workday of inactivity between two temporary assignments.
The temporary employment agreement for an unlimited duration must be established in writing at the latest at the starting date of the agreement. The model of the agreement is to be established by collective labour agreement, concluded within the joint labour-management committee for temporary work and rendered compulsory by royal decree.
The law of 3 July 1978 relating to the individual employment contracts apply to the agreement, it being understood that derogating stipulations concerning the termination of the agreement by the temporary worker may be provided for by collective labour agreement, concluded within the joint labour-management committee for temporary work and rendered compulsory by royal decree.
The periods of inactivity between the temporary assignments are to be taken into consideration
for determining the temporary worker’s rights with respect to annual vacation and they are included
for the calculation of the time of service of the temporary worker.
During these periods of inactivity, the rules relating to suspension of the contract for economic reasons cannot be applied.
The temporary worker is entitled to a minimum hourly salary for each hour of a fulltime workday or workweek during the periods of inactivity. The amount of the hourly salary as well as the fulltime daily and weekly work time serving as the reference for the calculation of the guaranteed hourly salary is to be determined by collective labour agreement, concluded within the joint labour-management committee for temporary work and rendered compulsory by royal decree.
Obviously, this guaranteed hourly salary represents an additional cost for the temporary employment agency. It is to be expected that the temporary employment agencies will recuperate this extra-cost from the employer-user. Normally, this should lead to different rates depending on whether the temporary worker is employed by the agency on the basis of a "one shot" temporary employment agreement or a temporary employment agreement for a unlimited duration.
Will this have an effect on the success of the system? In any event, it is to be expected that, as a result thereof, the "permanent" temporary workers will be more expensive than the "real" temporary workers.
For each temporary assignment, the temporary employment agency establishes an "assignment
letter" (the substitute of the "one shot" temporary employment agreement),
specifying the identity of the employer-user, the justification for calling in a temporary worker,
the duration of the assignment, the professional qualification, the place of work, the work time
schedule and the salary and other compensations, if any.
Finally, each temporary assignment is to be covered by an agreement between the temporary employment agency and the employer-user in accordance with the stipulations of the existing regulations concerning temporary work.