Breach of publicity prescriptions part time employment: rebuttable or non-rebuttable presumption of full time employment?

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Date:
14 Mar 2011

In order to combat undeclared employment, the publicity prescriptions regarding part time employment are being penalised by the presumption that the employee is employed on a full time basis, according article 22 ter of the NSSO (National Social Security Office) –act.

In order to combat undeclared employment, the publicity prescriptions regarding part time employment are being penalised by the presumption that the employee is employed on a full time basis, according article 22 ter of the NSSO (National Social Security Office) –act.

Article 22 ter NSSO-act has been the subject of a long history of controversy and has been adapted many times. With the current version of art. 22 ter NSSO-act, introduced in 2004, the legislator wanted to bring the jurisprudence that considered this presumption of full time employment as being rebuttable to an end. The Explanatory Memorandum states that it was the intention to make this presumption non-rebuttable. In other words, the employer cannot even try to prove that the employees were working on a part time basis.

However, the Belgian Supreme Court has now judged in its decision of 07/02/2011 that the presumption of full time employment is still rebuttable, since art. 22 ter NSSO-act does not mention that the presumption is non-rebuttable. The conditions in order that the presumption could be considered as non-rebuttable are not fulfilled. Regarding the Explanatory Memorandum, the Belgian Supreme Court has decided that it cannot give an interpretation to this legal provision that does not correspond to the legal text itself.

Hopefully this decision will bring the controversy concerning the nature of the presumption of full time employment to an end. However, it cannot be excluded that the NSSO will strive for a new legislative initiative.