False self-employment: Adoption of specific criteria in the security sector

A Royal Decree completes the legal socio-economic criteria that allow to presume the existence of an employment contract between a self-employed security agent and his co-contractor. It is the first royal decree of its type.

The Act concerning the nature of the working relationships has been amended in such a way that a presumption of employment contract is added if nine socio-economic criteria are met (see our newsletter of 19 September 2012). The Act makes this (rebuttable) presumption applicable in four sectors only: the building sector, the cleaning sector, the transport sector and the surveillance sector. A mere royal decree can nevertheless extent this presumption to other sectors. Moreover, a royal decree, may complete the nine legal criteria or replace them by other criteria.

This 14 May, a first such royal decree was published, completing the nine legal criteria in the surveillance sector. Other royal decrees concerning other sectors are in preparation.

Among the adopted criteria stand:

• the absence of participation in the negotiation of surveillance contracts;
• the absence of direct access to the information regarding the client's site to be watched;
• the absence of determination of the working location by the agent;
• the use of communication means which are not owned or leased by the agent;
• the use of a uniform with the logo of the co-contractor;
• the use of an identification badge mentioning the name of the co-contractor.

The nature of the applicable criteria makes it more difficult to establish a self-employed working relationship between a security agent and his co-contractor.

> Action point:

• In the light of all the applicable criteria, assess the risk of recharacterization of the working relationship with self-employed agents;
• Make sure no subordinate relationship can be established taking into account the applicable criteria.