On 19 July 2022, the National Labour Council’s social partners proposed introducing a new responsibility mechanism to financially penalise companies that make excessive use of successive daily temporary agency (“interim”) work contracts (SDC): if the SDC number exceeds a certain threshold during a semester, then the company-user will have to pay a special social security contribution. This contribution amount will gradually increase with the SDC number. The National Labour Council has asked the government to take all necessary legal and operational initiatives so that this responsibility mechanism will enter into effect on 1 January 2023.
What are (successive) daily temporary agency work contracts?
Successive daily temporary agency work contracts (SDC) are employment contracts for agency work that are concluded for a maximum of 24 hours with the same user and that immediately follow each other.[1] It is legally permitted to execute this type of temporary agency work contract provided the user can justify the need for such flexibility. This implies that the user should be able to demonstrate that: the work volume depends upon external factors, or the work volume strongly fluctuates or is linked to the nature of a specific task.
Why are (successive) daily temporary agency work contracts popular?
National Social Security Office (“NSSO”) data has shown that SDC are very popular.[2] This observation is not a surprise as it is a flexible instrument that allows company-users to quickly respond to (unpredicted) operational needs, especially in the logistics sector with its “just in time” business models.
Why will the use of (successive) daily temporary agency work contracts be discouraged?
Although the added value of SDC is being recognised, relying on this type of contract may not constitute a business model that guarantees a company’s operational functioning. The excessive use of SDC by a company-user will be discouraged. This is mainly because it results in professional uncertainty for the interim-worker concerned.
In certain sectors, the use of SDC is already strictly regulated and restricted; for companies falling under Joint Committee n° 124 for the construction sector, the use of SDC is even prohibited.
What will the future responsibility mechanism look like?
Company-users will have to pay a special social security contribution if the SDC number exceeds a certain threshold during a 6 month period.[3] The higher the SDC number, the higher the contribution:
Number of SDC with the same interim worker and with the same company-user during a semester[4]
The amount of the special social security contribution per semester per interim worker
0 – 39
0
40 – 59
10 x SDC number: min. EUR 400 – max. EUR 590
60 – 79
15 x SDC number: min. EUR 900 – max. EUR 1,185
80 – 99
30 x SDC number: min. EUR 2,400 – max. EUR 2,970
100 and more
40 x SDC number: min. EUR 4,000
As an example: a company-user that uses the same interim worker 85 times based on a successive daily temporary agency work contract (SDC) in the period between 1 January and 30 June 2023 would have to pay a special social security contribution amounting to EUR 2,550.
Are there any exceptions to this rule?
In “exceptional circumstances” users can be reimbursed for the special social security contribution (after first having paid it) subject to compliance with a prior, specific procedure. The NSSO will make the final decision as to whether any reimbursement will be granted.
It is worth noting that the social partners have not defined the concept of “exceptional circumstances”.
When will the responsibility mechanism come into force?
The social partners’ aim is to have the responsibility mechanism come into force on 1 January 2023. Whether this target date will be met is not yet certain; not only certain legislative and regulatory initiatives are needed, but also, from an operational perspective, specific tools must be implemented (such as an application allowing a company-user to monitor the SDC number).
If you would like any further information about this subject or about related topics such as agency work, temporary work or staff supply, then the ALTIUS’ employment team is available to assist you.
Emma Van Caenegem - Managing Associate
Mathilde de Foestraets - Associate
[1] Or are separated by a maximum of one public holiday or by the usual inactivity days of the user.
[2] In 2020, +/- 25% of all work agency contracts were SDC.
[3] These periods are: between 1 January and 30 June; and between 1 July and 31 December.
[4] Retired individuals, flexi-jobs and occasional works (“gelegenheidswerk”/“travail occasionnel”) in the agri- & horticulture sectors as well as in the hotel sector are excluded from the scope of application.
