- 23 May 2013
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.