Companies are faced with a growing need for flexibility in the organisation of their activities. This is not a new trend, and it is only becoming more apparent. There are many situations that call for alternatives to the traditional permanent contract, and the law is keeping pace with these developments by adapting to the new realities of the market.
For example, the government agreement announces a broadening of ‘existing possibilities’ for the temporary and/or flexible transfer of personnel. In the following paragraphs, we offer a brief look at what already exists, based on a number of key questions.
Is it really forbidden to use staff from a third-party company?
The rule is unequivocal: in principle, it is forbidden to make one's personnel available to (or lend them to) a third-party company. However, this prohibition more specifically prohibits the fact that a worker of employer A is subject to the authority of employer B.
Let us clarify the following:
- Instruction vs. authority. Not every instruction constitutes the exercise of employer authority.
- Instruction clause. It is possible to conclude a contract between two companies containing an express clause allowing the personnel of company A to give certain listed instructions to the personnel of company B in a supervised manner.
- Authorised secondment. There is an exceptional possibility of making personnel available for a limited period, subject to prior authorisation from the labour inspectorate. This possibility is rarely used. However, it is possible to dispense with prior authorisation from the labour inspectorate in the case of intra-group secondment or for the performance of certain specialised tasks.
- Temporary work. One widespread option is to use workers from a temporary employment agency, which is particularly useful when there is a need for a replacement or a temporary increase in workload.
Is it possible to share personnel?
There are currently two ways of sharing personnel:
The first is through an employers' group. However, this mechanism is rarely used in practice, mainly because of the administrative formalities involved, such as the creation of an ASBL, compliance with a specific procedure and the obligation to draw up an activity report. In addition, the number of workers employed by a group is generally limited to fifty.
The second alternative has emerged in practice and involves concluding a ‘global’ employment contract between a worker and two or more employing companies. With a bit of creativity and efficient organisation, this can be a very interesting alternative!
Is it possible to hire personnel for a fixed period or a specific job?
Of course it is. Here we're thinking in particular of the more classic forms of fixed-term employment contract or employment contract for a clearly defined job.
In a less traditional way, although this form of flexible working is gaining ground, we are obviously thinking of the flexi-job contract. The policy statement by the current Minister for Employment confirms what was announced in the government agreement, namely that the possibility of using flexi-jobs should be extended to all sectors, taking into account certain specific features relating to the rules governing access to the profession.
As you can see, the current rules already provide for multiple possibilities for flexible recruitment, with each of the different options presenting more or less restrictive conditions of application. However, the government has announced even greater flexibility for the labour market in the future. We will be keeping a close eye on any developments in this area.
To be continued...
Sacha Henet and Ambre Vranckx, Eubelius
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