The temporary employment relationship for agency work is a triangular relationship which involves the establishment of 2 different contracts in parallel: the assignment contract between the 'temp' agency and the worker, and the labour supply contract between the agency and the user company.

Who is concerned

This type of working relationship involves 2 different types of contracts in order to organise the working relationship between 3 parties:

• the temporary agency worker is bound by a work contract called an 'assignment contract' with the agency, and is hired out to the user company which purchased temporary agency work;
• the agency is bound by:
  • an assignment contract with the temporary worker;
  • and a labour supply contract with the user company which purchased the temporary agency work;
  • the user company is bound to the agency by the labour supply contract, which is a commercial contract.

Prerequisites

Temporary agency workers may be employed through a labour supply contract only to perform a specific and short-term task. Temporary agency workers cannot be used for the normal and continuous activity of the user company.

How to proceed

Assignment contract between the temporary work agency and the temporary agency worker

Job offers

The job offers posted by the temporary work agency must indicate, clearly and unequivocally:

• the company name of the temporary work agency;
• the temporary nature of the job offer.

Contractual terms

Assignment contracts are employment contracts. 

The assignment contract must be drawn up in writing for each of the temporary workers made available.

The contract must be given to the worker at the latest within 2 working days after the worker is assigned.

Mandatory information

The assignment contract must include:

• the mandatory information which serves as a basis for the fixed-term employment contract, including:
  • the mandatory information in the contract concluded between the temporary work agency and the user company;
  • if the contract is concluded for a fixed period of time: its end date;
  • if there is no end date: the minimum duration for which the contract is concluded;
  • if the purpose of the contract is in relation with the replacement of an absent worker: the name of the absent worker;
  • the duration of the trial period if any;
  • the renewal clause;
  • a clause stating that the hiring of the temporary agency worker by the user company at the end of the assignment is not prohibited.

It must be noted that the assignment contract is automatically changed into a permanent employment contract in the event that:  

• the assignment contract was concluded verbally;
• the assignment contract does not stipulate that it is concluded for a fixed term.

In both these cases, managers of temporary work agencies must pay compensatory damages in lieu of notice to their temporary agency worker. The amount of these compensatory damages depends on the worker's length of service.

Existence and duration of a trial period

The assignment contract may include a trial period whose duration will vary depending on the duration of the assignment.

Each assignment contract may only include one trial period.

During the trial period, the temporary work agency and the temporary agency worker can unilaterally terminate the employment contract:

• by registered letter or delivery in person of the resignation with a counter-signature on the copy of the letter of resignation;
• without notice;
• without severance pay.

Termination of the contract after the trial period

Once the trial period is over, the contract can no longer be terminated by the agency or the temporary worker, except in the event of serious misconduct by one of the parties.

In the absence of serious misconduct, the terminating party is required to pay damages (which are capped).

In the event of termination of the contract before its term by the temporary work agency, the agency is required to pay damages to the temporary agency worker.

The damages can be:

• an amount equivalent to the salary which would have been paid to the worker until the end date initially agreed on in the contract;
• limited to the amount the agency worker would have received if he had been dismissed with notice within the framework a permanent employment contract.

Duration of the assignment contract

In principle, the assignment contract must contain a precise end date from the moment it is drawn up.

Under exceptional circumstances, a precise end date of the assignment contract is not required in the following cases:

• replacement of an absent worker;
• replacement of a worker whose contract has been suspended for reasons other than a collective labour dispute (e.g. a suspension);
• filling a position which has become vacant but where the official successor has not yet begun work;
• seasonal work;
• work in a sector where permanent employment contracts are usually not used (notably the construction or entertainment industries, etc.).

However, the duration of an assignment contract cannot exceed 12 months, including a renewal, for the same worker in the same position. Fixed-term contracts may only be renewed twice.  

Nevertheless, there are some exceptions:

• a seasonal contract can exceed the 12-month limit;
• the Minister for Labour can extend the 12-month limit if it is in the interest of workers carrying out activities which require highly specialised skills and a proven professional experience in the specialised field of activity.

Assignment contracts concluded in violation of the contractual terms and conditions will automatically be changed into a permanent employment contract.

Payment of salaries and benefits

The temporary work agency alone is responsible for:

• paying the temporary agency worker's salary;
• paying social security contributions;
• paying tax contributions.

The salary of a temporary agency worker cannot be lower than the salary to which, after the trial period, a salaried worker with the same qualification (or equivalent qualification) would be entitled if the temporary worker were hired under the same conditions with a permanent employment contract by the user company.

If the user company does not employ a permanent worker with the same or equivalent qualification as the temporary agency worker, the temporary worker's salary cannot be lower:

• than the salary stipulated by collective agreement in the sector of activity of the temporary agency worker; or
• than the salary paid to a permanent worker with the same qualification (or equivalent qualification), in the same position at another company.

This statement must indicate:

• the period of work;
• the total number of working hours corresponding to the remuneration paid;
• the rate of pay for the hours worked;
• any other remuneration in cash or in kind.

Length of service of the temporary agency worker

The temporary agency worker's length of service is calculated by adding together the periods during which the worker has carried out assignment contracts for the agency.

Relations between the user company and the temporary agency worker

Access to the user company

A temporary agency worker must be able to access the user company under the same conditions as the permanent staff of said company.

This access includes access to collective facilities which are available to the user company's internal staff such as:

• catering facilities;
• means of transport.

Hygiene and safety conditions

During the temporary worker's assignments, the user company is fully and solely responsible for the respect of hygiene, safety and health measures in the workplace.

The user company therefore has to ensure the proper application of standards regarding working conditions and protection of workers, whether these standards are:

• foreseen by law;
• regulatory;
• conventional.

Leave for the temporary agency worker

The temporary agency worker is entitled to paid annual leave during each assignment contract, irrespective of the contract's duration.

The temporary agency worker is therefore entitled to take annual leave during each assignment contract. The duration of the annual leave is independent of the duration of each assignment contract.

The worker can request leave in kind from the user company in proportion to the duration of the assignment with the user company.

In principle, recently hired workers have to wait 3 months before they can request leave. This waiting period does not apply to temporary agency workers.

Duration of the assignment contract

If, at the end of the assignment contract, the temporary agency worker continues to work for the user company, the temporary agency worker is deemed to be bound to the user company by a permanent employment contract, provided:

• no new labour supply contract has been concluded between the user company and the temporary work agency;
• the user company continues to employ the temporary agency worker without signing an employment contract with them.

Expiry of the assignment contract

Upon expiry of the assignment contract, the user company must wait a period of time equivalent to one-third the length of the assignment contract before it can fill the same position again on the basis of:

• a labour supply contract; or
• a fixed-term employment contract.

This grace period cannot be avoided by supplying a new temporary agency worker or by concluding a new labour supply contract with another temporary work agency.

However, the grace period will not apply in the event of:

• the renewed absence of the replaced employee;
• urgent work;
• a seasonal contract;
• a contract for a job for which permanent employment contracts are not the norm;
• early termination by the worker under an assignment contract;
• prior refusal by the worker to renew the assignment contract, if said contract originally stipulates a renewal clause.

Hiring the temporary agency worker

If the user company hires the temporary agency worker, the duration of the assignments carried out during the year prior to the recruitment will be taken into account when calculating the seniority of the worker.

The period of seniority (or length of service) will be deducted from the duration of the trial period which may apply in the event where the temporary agency worker will be hired to work in the same job.

Contract between the temporary work agency and the user company

The labour supply contract must be concluded in writing between the temporary work agency operator and the user company within 3 working days from the moment the temporary agency worker is made available.

The labour supply contract must be drawn up individually for each worker.

This contract must include the following mandatory information:

• the name of the absent worker within the framework of a replacement of a salaried worker;
• the duration of the assignment;
• the characteristics of the position to be filled;
• the required professional qualification;
• the place of work;
• the normal working schedule;
• the indication of the salary paid by the user company to a salaried worker with the same qualifications (or equivalent), under the same conditions and considered as an equivalent worker;
• The indication of the reason why the user company needs to hire a temporary agency worker.

Mandatory information

In order to protect the future temporary agency worker's health and safety, the user company must inform the temporary work agency of:

• the required personal qualification;
• the characteristics of the position to be filled.

Safety of the temporary agency worker

Before sending a temporary agency worker on an assignment, the temporary work agency must inform the worker of:

• the required personal qualification;
• the characteristics of the position to be filled.

Jurisdiction of the courts

The assignment contract tying the temporary worker to the agency is an employment contract. The labour tribunal therefore has jurisdiction in case of a dispute between these parties.

Who to contact