COVID-19 - Loan of manpower: temporary easing of an otherwise rigid regulation
30 Apr 2020
Talent sharing creates the opportunity for optimal use of staff, even more so during the COVID-19 crisis. Personnel can be deployed in the critical sectors where there is an increase of work, in stead of being temporarily unemployed. For employers, talent sharing can result in a decrease of costs. Its obvious appeal hasn’t gone unnoticed and companies throughout Belgium launched talent sharing concepts amongst each other.
It however quickly became clear, that the current legal framework makes it difficult for employers to act promptly. The government therefore adopted a measure that entails a three-month derogation from the prohibition on loan of manpower, which makes it possible for an employer, in addition to his normal activities, to make his permanent employees available to a user belonging to the critical sectors.
Loan of manpower: a quick recap
The basic idea is that only the legal employer of an employee can exercise employers’ authority over the employee. It is thus the employers’ exclusive power to sanction the employee, make decisions on his salary, working time, etc. This principle implies that the loan of manpower to a third party, accompanied by a transfer of employers’ authority, is not allowed. Only in pursuance of a written service agreement with the employer and with respect of several conditions, can a user make use of the employees of another company.
The prohibition – which is embedded in art. 31 of the Act of 24 July 1987 - does not only apply to companies in Belgium, but also to a company vested outside Belgium that sends employees to Belgium and is equally applicable to the loan of manpower between companies of the same group.
Whenever there is a rule, there is an exception
In exception of the prohibition on the loan of manpower, art. 32 of the Act of 24 July 1987 states that an employer can make its permanent employees available to a user if the following conditions are met:
- Only permanent employees can be made available. Permanent employees are all employees who are party to a regular employment contract. Employees with a replacement - or temporary employment contract are therefore not eligible.
- The permission of the social inspection is required. The inspectorate will only grant this if there is an agreement between the union representative of the user and the user itself. If there is no union delegation present at the user, the agreement of the employee delegation in the Joint Committee that is applicable to the user, is required.
- The employer, the user and the employee must sign a tripartite agreement before the posting starts. This agreement must determine the conditions and duration of the period of posting.
In this case, the original employment contract with the employer remains valid. The wages and benefits of the employee may, however, not be less advantageous than those received by employees who hold the same position in the user's company. Also, the user and the employer will be jointly and severally liable for the payment of the social security contributions, wages, allowances and benefits.
Temporary easing of article 32 for the critical sectors in light of COVID-19
The Special Powers Decree no. 14 of 27 April 2020, adopted in execution of the powers granted to the King to take all measure to combat the spread of COVID-19, introduces a temporary easing of art. 32 for users active in the critical sectors.
Employers that loan employees to users in these sectors between April and the end of June 2020, don’t have to receive the permission of the social inspection to make use of the abovementioned exception to art. 32. This allows employers to respond adequately and timely to the current needs of the labour market.
All other conditions, however, still have to be met, as well as an additional one: the posted employees must already be employed by the employer before 10 April 2020.
Talent sharing: worth your while but a proper set-up is key
The appeal of talent sharing is clear: employees can work instead of being temporarily unemployed and the need for extra staff in the critical sectors is met. The social purpose that can be served with this set up, is often one of the main drivers to invest in talent sharing during this crisis.
Caution is, however, advised: the legal conditions must be respected meticulously, because if not, civil and criminal sanctions are possible. It is thus in interest of all parties involved to properly organise this set-up. If you need assistance with respect to talent sharing, don’t hesitate to reach out.
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