Ruling Commission for the Characterisation of Employment Relationships Finally to be Established

In December of last year, a royal decree was passed[1] establishing two divisions - an administrative division and a prescriptive division - within the previously inactive Commission for the Characterisation of Employment Relationships within the Federal Public Services of Social Security and Employment, Labour and Social Dialogue (hereinafter the "commission").

Once the commission members have been appointed, companies will be able to submit a file to the administrative section, requesting a ruling on the possibility of recharacterisation of a consultancy agreement as an employment contract, and vice versa, provided certain conditions are met.

Such a request can be made by (i) a party starting a self-employed professional activity, in which case a request for affiliation to a social insurance fund should also be submitted, (ii) a company that would like to enter into a professional relationship with a person whose status is uncertain, or (iii) either of the aforementioned parties, provided neither has filed a claim for recharacterisation.

The hearings of the commission, which will be composed of magistrates, experts and civil servants, will not be open to the public. The commission will render its decisions, based on the documents submitted, after having heard the parties. However, it should be noted that the commission will only hear the parties if requested to do so by a majority of its members, the chairperson or a party. 

The commission will render a decision within three months from submission of a file. The commission's decisions can be appealed to the labour courts. The period of validity of a decision (three years or an unlimited duration) will depend on how the procedure is initiated. 

If it appears that the parties' characterisation of their relationship does not conform to reality, the relationship will be recharacterised, but without retroactive effect.

However, it should be noted that the commission cannot render a decision if the Social Inspectorate has already started an investigation or if proceedings are pending before a labour court or a judgment has been rendered by a labour court. 

The social security authorities and the social insurance funds for self-employed persons will be bound by the commission's decisions, unless the conditions for performance of the relationship change or it appears that the information on which the decision was based was insufficient or inaccurate.

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[1] Royal Decrees of 14 December 2010 regarding the composition and working of the administrative/ prescriptive division of the Commission for the Characterisation of Employment Relationships, Belgian State Gazette of 28 December 2010 and 28 January 2011