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Headline Labour & Employment: "Recruitment" - A new possibility to appeal to temporary agency workers

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On 17 July 2012, the National Labour Council has issued an advice relating to the modernization of the rules regarding temporary agency work. The most important innovations are the introduction of the new reason of “recruitment” and a legal framework for one-day contracts. These innovations are taken up in a draft collective bargaining agreement. In addition to this, the National Labour Council proposes to amend the Act of 24 July 1987 on temporary work, temporary agency work and hiring out of workers to user company’s. These new rules would apply as from 1 April 2013.

Currently, a company is authorized to appeal to temporary agency workers for three specific reasons:

- to replace a permanent employee;
- to meet with a temporary increase of the work load;
- to carry out an exceptional task.

In the opinion of the National Labour Council, a fourth reason should be added to this list, i.e. the reason of “recruitment”. In case of temporary agency work based on “recruitment”, the user company is offered the opportunity to test the skills of the temporary agency worker who, in turn, can get familiarized with the work environment of the user company. In principle, the hiring of the temporary agency worker with an open-ended employment contract is intended, when the period of temporary agency work has come to an end.

If the reason “recruitment” is used, a temporary agency worker can only work for a maximum period of 6 months with the same company and within the same function. The minimum length of the temporary agency work agreement for the reason of recruitment is one week. The user company can only assess three temporary agency workers per function. Indeed, not more than 3 attempts of a maximum period of 6 months per temporary agency worker are allowed, provided that the total length of the employment combining the three attempts does not last longer than 9 months.

The period of employment as a temporary agency worker for the reason of “recruitment” shall be taken into account for the calculation of the employee’s length of service, in the event that an employment contract is entered into afterwards. Furthermore, the period of “recruitment” must be deducted from the duration of the probationary period which can be agreed upon in the employment contract.

The user company must also inform and consult the trade union delegation, if present within the company, before the company is allowed to appeal to the reason of “recruitment”.

A second important innovation is the regulation of one-day contracts. By doing so, the social partners intend to combat the abuse of successive one-day contracts, which are sometimes used in order to avoid the payment of remuneration for public holidays and guaranteed salary for sickness. Therefore, the National Labour Council advices that successive one-day contracts for temporary agency work with the same user company are only allowed in so far as a need to flexibility is established. A need to flexibility is assumed when the work load of the user company mostly depends on external factors, or when the work load is subject to strong fluctuations or linked to the nature of the assignment.

Finally, the new draft collective bargaining agreement of the National Labour Council modifies the rules regarding the controlling and the providing of information to the works council or, in the absence thereof, to the trade union delegation or, if neither of them are established within the company, the Social Security Fund for temporary agency workers.

The idea is that the legislator implements the innovations proposed by the National Labour Council, so that the amended rules, together with the collective bargaining agreement of the National Labour Council, can enter into effect as from 1 April 2013. For the time being, the current rules still apply.