Temporary employment : Get your signature in time !

Temp agency workers are almost always employed with contracts for a definite period. However, the widespread problem in the temporary employment industry is signing the employment agreement for temporary work in a timely manner : until 1 October 2016 one had two days to do so (counted from the start date of the employment). However, as of 1 October 2016, the law provides that the employment agreement for temporary work must be concluded in writing no later than at the moment the temp worker commences his employment. In practice, however, is it is difficult to get the temporary agency employee’s signature in time. Currently, the penalty in case of non-compliance with the abovementioned rule is nevertheless quite high : the employment agreement is subject to the rules of agreements for an indefinite period. This mainly affects the ways of termination of the employment agreement.

Temp agencies are for this reason often faced with claims to pay severance if the employment agreement for temporary work has not been concluded in due time and the collaboration between parties has come to an end. In case law, the temp agencies were regularly ordered to pay such severance, even if the temp agency itself had been diligent by preparing this to the temporary agency employee in time. Such a judgement was often considered unjust.

No dismissal, no severance pay

The employment tribunal in Ghent, division Bruges, recently reached another decision. It concerned a temp worker who had not received a written employment agreement in a timely manner. Moreover, the temp worker had refused to sign the agreement due to an issue regarding the position mentioned in the document. A claim for severance pay was filed with the employment tribunal.

The temp agency contested this claim with the argument that it had not committed any act of dismissal : if there would been an employment agreement for indefinite duration, then such agreement would have been terminated due to the fact that the employee no longer showed up for work. The employment tribunal accepted this argument and rejected the claim, given that it had not been proven that the temp worker had been dismissed.

Since 2016 : moderating the penalty in case of electronic agreements

However, the line reasoning of the employment tribunal of Ghent, division Bruges, is only supported by a minority of case law. With the legislative change of 2016 – which eliminated the 48-hour rule for the signing of a document – the legislator has attempted to reduce the penalty for the temp agencies. The employment agreement for temporary work must now be signed before the start of the work ; however, in the absence of a timely signature, the agreement will not be subject to the rules for agreements for indefinite duration if the following conditions are cumulatively met :

• The intention to conclude the employment agreement for temporary work was documented in writing no later than when the temp worker was first employed by the temp agency ;
• Prior to the start of the work, the temp agency sent a draft of the electronic employment agreement to the temp worker for signing, yet the temp worker failed to sign it in a timely manner ;
• The temp worker started the work at the time set out in this draft ;
• The temp agency reported the start of employment based on a DIMONA registration before the temp worker started his work for the user.

This exception thus only applies to electronic employment agreements. In this way, the legislator intended to stimulate such agreements. No solution is offered for paper employment agreements. Therefore, an active follow up on the signing of employment agreements remains recommended.

Yne Machiels

Employment Tribunal Ghent, Bruges division
3 October 2017
n° 16/2257/A
unpublished.
An appeal was lodged against this judgement.