Covid-19: hiring out in care and education from 1 April until 30 June 2022

Author: Catherine Mairy (Legal Expert)
Date:

To enable companies in certain sectors to cope with the consequences of the Covid-19-epidemic,  it will be possible, under certain conditions, to hire out to them permanent employees who are employed in other companies.

Rule

Hiring out employees to users is prohibited, subject to the exceptions provided for in the Act of 24 July 1987 on temporary work, temporary agency work and hiring out employees to users.

‘Covid-19 support measure’ exception

The Act of 14 February 2022 provided for an additional exception to this rule until 31 March 2022.

This exception will be extended from 1 April 2022 until 30 June 2022.

Please note! The measure still has to be published in the Belgian Official Gazette.

Update! The Act of 8 May 2022 was published on 10 June 2022. The measure has been confirmed.

Conditions for hiring out

If an employer wishes, outside his regular activity(ies), to hire out his permanent employees to a user, he will have to comply with the following conditions:

  • the user must belong to the care or education sector;

Note - Care sector is understood to mean:

    • private and public services and organisations providing care, support and assistance to individuals, the elderly, minors, disabled persons and vulnerable persons, including victims of intra-family violence (joint committees nos. 318, 319, 330, 331, 332, 322 if the temporary agency worker is employed by a user who falls under one of the above-mentioned joint committees);
    • private and public institutions and centres in charge of contact tracing in order to limit the spread of Covid-19;
    • private and public institutions or services in charge of operating vaccination centres in the context of the fight against Covid-19 (for all activities related to the operation of a vaccination centre).
  • the hiring out must take place between 1 April 2022 and 30 June 2022 in order to cope with the consequences of the Covid-19 epidemic in the user's company;
  • the permanent employees that are hired out must have started work before 1 October 2021.

Procedure

The conditions and duration of the hiring-out period, will have to be laid down in a written document:

  • drawn up before the beginning of the hiring-out period;
  • and signed by the employer, the user and the employee.

No further formalities will be required.

Pay and working conditions during the hiring out

The employment contract between the employee and the employer will remain in force during the hiring-out period.

This means, among others, that the employer remains liable for the payment of wages to the hired out employee, the latter being furthermore not entitled to receive lower wages, allowances and benefits than those received by employees carrying out the same tasks in the user's company.

As for the user, he will become jointly and severally liable for the payment of social security contributions, wages, allowances and benefits resulting from the employment contract concluded between the employer and the employee.

During the hiring-out period, the user will also be responsible for the application of the legislation on the regulation and protection of labour applicable at the place of work (as referred to in Article 19 of the Act of 24 July 1987).

Consulting and informing the employee representatives

The employer can only use this measure if there are no alternative solutions available within the company to meet the problem of staff shortages (e.g. offering more hours to part-time employees).

He must consult on this in advance with the works council or, in the absence thereof, the committee for prevention and protection at work or, in the absence thereof, with the trade union delegation.

The employer who uses this measure will also have to:

  • inform the works council or, in the absence thereof, the committee for prevention and protection at work or, in the absence thereof, the trade union delegation;
  • include the discussion on the agenda of the meeting following the first use.

The discussion is placed on the agenda of the meeting each month for as long as the measure is used and, for the last time, at the meeting following the end of the use.

Source: Act of  8 May 2022 extending various labour law measures in favour of care and education within the framework of the fight against the spread of the coronavirus COVID-19, regarding the suspension of the period of notice given by the employer during a period of temporary unemployment due to force majeure as a result of the war situation in Ukraine and regarding the training clauseBelgian Official Gazette, 10 June 2022.

 

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