The December 2012 programme act: Delivering services becomes much more tricky!
10 January 2013
The Belgian Act of 24 July 1987 (PAD Act) regulates the loan of
employees to third-party 'users' and prohibits the leasing of
personnel accompanied by delegation of some or all of the
employer’s authority to the third-party user.
So far a third party was however not
considered as exercising employer’s authority over the employees of
another company as far as “authority” was exercised for one of the
following three purposes:
- to comply with the applicable obligations relating to
workers’ well-being and safety in the workplace;
- to give instructions, for the sake of the execution of a
(service) agreement, with respect to the application of working
hours and rest time as well as;
- to give instructions to the employees solely with regard to
the performance of their work.
The latter paragraph, inserted by the Act of 12 August 2000, has
now been amended. The last two bullets are being suppressed by the
new Program Act of 27 December 2012. Instead a general paragraph is
inserted in section 31§1 second paragraph of the PAD Act, which
provides for more stringent requirements for being able to give
instructions without triggering the application of the PAD Act: the
legislative change includes that instructions given by third
parties (clients) to workers of another company will have to comply
with the following conditions:
- be set down in a written
- the contract has to state in an explicit,
detailed fashion exactly what instructions can be given by the
- the instructions given by the third
parties may not undermine the employer's authority
- the situation on the ground and the
instructions laid down in the written contract need to exactly
There will therefore be deemed to be a breach
of the law, and as such exercise of employer
authority by a third party, where (i) instructions are given other
than as set down in the contract, (ii) the contract does not fulfil
the requisite conditions (the nature of the instructions and/or
they are not sufficiently explicit and/or detailed), (iii) the
situation on the ground does not match the written provisions of
In addition, this new legislation creates
additional publicity obligations incumbent on the third parties
(i.e. clients): the client’s works council has to be informed that
the service contract has been signed and, on demand by the council,
a copy of that part of the contract stipulating the details of the
instructions has to be produced. If that part of the contract is
not submitted to the works council, the contract will de deemed to
be non-existent and therefore contrary to the PAD Act. If there is
no works council, the Committee for Prevention and Protection at
Work or the trade union delegation takes on this information right.
The procedure of this communication still needs to be detailed by
Royal Decree and is as such not yet of application.
The commented provisions will significantly
increase the administrative burden for companies providing services
to other companies or between group companies as the parties will
have to determine the instructions which may be given by the third
party (client). The challenge resides in detailing what is to be
qualified as 'employer's authority' and what are 'instructions' not
to be qualified as employer's authority….and in tallying exactly
the text of the agreement to the situation on the ground.
Also in respect of international employment
these new rules will play a significant role. Companies
'assigning/seconding' staff to the Belgian territory fall within
the scope of the PAD Act.
Given the general principles in respect of
timing for the application of new legislation and since the Act of
24 July 1987 is of public order, existing contracts will have to be
adapted (as from 10 January 2013) and will have to provide for more
details in respect of the instructions given by third parties.
In separate updates we will comment on other
aspects of the Programme Act of 27 December 2012.