General Conditions « Temporary Staffing » – Manpower Belgium

Manpower (Belgium) NV/SA – Version June 2020

1. These general conditions apply for each agreement regarding temporary staffing between Manpower and the client, excluding any other general conditions unless otherwise agreed in writing. The general conditions are deemed to be approved by the client if Manpower presents a candidate to the client and/or provides a temporary worker to the client.
2. Pursuant to CBA nr. 38quater van 14/07/1999, candidates and/or temporary workers cannot be treated in a discriminatory way. The client shall therefore only mention criteria in its request which are specifically related to the function.
3. The Client shall provide Manpower all information which is required for providing the temporary worker. This inter alia includes, but is not limited to:

• The motive to rely on temporary staffing;
• The presence of a trade union delegation;
• The applicable joint committee (and subcommittee);
• The salary and benefits (incl. indexations) to which the temporary worker would be entitled, if he would have been employed under the same conditions by the client and the allocation modalities (article 10 of the law of 24/07/1987);
• The job description, worksite form, job qualification, results from risk evaluation, need for medical supervision and personal protective equipment;
• Additional information which is required for the Dimona declaration;
• If required, the correct PO number for invoicing by Manpower to the client.

During the execution of the temporary staffing assignment, the client will immediately inform Manpower in case of:

• Strike, lock-out or any other form of temporary unemployment;
• An industrial accident in which the temporary worker is involved;
• Lateness or absence of the temporary worker;
• Renewal of an assignment and, to the extent required, the reason for which the assignment has not been renewed.

The client is exclusively liable for timely transmitting correct information. Any rectifications, costs and losses or administrative costs resulting from non-compliance with this obligation (regarding employment law, tax law, social security law…) will be invoiced to the client. The missing of a valid PO number due to neglect by the client, will not release the latter from its payment obligations.

The client is also exclusively liable for the correct application of the motives for temporary staffing and compliance with any terms in this respect. The Client will obtain all necessary authorizations and/or make the necessary notification so that he can rely on temporary staffing.

4. Each request for a temporary staffing assignment needs to be received during the opening hours of Manpower, at the latest one (1) hour prior to the start of the assignment and needs to be confirmed explicitly by Manpower. In the absence of confirmation and/or late request Manpower shall not be bound to provide a temporary worker.

A request can only be cancelled if the following conditions are met cumulatively:

1. • Prior approval by Manpower in writing;
   • The temporary worker has not yet signed his employment agreement;
   • The temporary worker has not yet started to work;
   • The request for annulation has been received by Manpower at the latest at 4 pm of the business day prior to the start of the assignment.

5. The client is not entitled to unilaterally suspend or terminate the temporary staffing assignment without prior agreement in writing by Manpower. If the Client has not complied with this obligation, then Manpower is entitled to fully invoice the temporary staffing assignment, regardless of the amount of worked hours. In case of urgent reasons on the basis of which Manpower can, at its sole discretion, decide to terminate the employment agreement with the temporary worker, the Client will provide the necessary evidence therefore.
6. Manpower will only proceed with payment of “costs specific to the employer” to the temporary worker, to the extent that the Client has provided the necessary supporting documents. The client is exclusively liable and shall indemnify Manpower against any rectifications and relevant costs which are made by Manpower in this respect following a control by authorities (Social Security, Tax…). Such costs will be fully invoiced by Manpower to the client.
7. The client will be exclusively liable to demonstrate the need for flexibility in case of use of successive daily contracts. The client shall need to demonstrate that the work volume in his company (i) largely depends from external factors, (ii) strongly fluctuates or (iii) is linked to the nature of the assignment. The client will fully indemnify and compensate Manpower against all consequences which are due to the temporary worker and corresponds to the salary which was due if the temporary staffing employment agreement had been concluded for two weeks. In such event, the sanctions will be fully invoiced to the client, to be increased with the agreed multiplier and an administrative cost of €250. If there is not a work council in the company of the client, then the client will provide Manpower timely statistical evidence, every six months, demonstrating the need for flexibility, so that this can be provided to the Commission for Good Services.
8. Should the client make use of the “inflow” motive as reason for temporary staffing, then the client will inform Manpower about (i) the number of attempts which have been undertaken (ii) the duration of each attempt and (iii) the total duration of the attempts in order to fill in a vacancy. Temporary Workers who have terminated an employment agreement of indefinite duration in order to work as temporary worker under the “inflow” motive, are entitled to an employment guarantee of one month on behalf of the temporary staffing agency. The client will fully indemnify and compensate Manpower against all consequences should an assignment of the aforementioned temporary workers be terminated prior to the end of the employment guarantee. This includes inter alia the salary and remuneration which is due to the temporary worker for the remaining duration of the employment guarantee. In such event the sanctions will be fully invoiced to the client, to be increased with the applicable multiplier and an administrative cost of €250.
9. The client will not rely on temporary staffing in case of temporary unemployment, strike or lock-out in his company. In such event, the client will immediately order the temporary workers to stop working, which can under no event lead to any indemnification of the damage in favor of the client.

If, for the period of temporary unemployment, on the request of Client and with approval from Manpower, temporary staffing contracts are prolonged, the Client explicitly accepts:

• • To have the intention to employ the respective temporary workers following the period of temporary unemployment and the maintain the bond with the temporary workers;
  • That any costs which might result thereof (such as holiday pay, seniority, bank holidays, additional benefits, etc.) will be due by the Client.

10. The client undertakes, also for temporary workers, to comply with the rules regarding provision of employees (art. 31 ff. of the law of 24/07/1987). The client will indemnify Manpower against possible sanctions, costs and damage which would result from unlawful provision or disguised temporary staffing by the client.
11. For the period during which the temporary worker is working with the client, the client shall be responsible for the application of the laws regarding the regulation and protection of labour which shall apply at the place where the work is to be executed. As a result thereof, the client shall treat the temporary workers in an identical way as its permanent staff, inter alia with respect to the fight against discrimination, the equal treatment of men and women, working time, legal holidays, Sunday rest, women labour, mother protection, the protection of breastfeeding mothers, labour by youthful persons, night labour, work rules, provisions regarding the work by part-time employees, health and safety of employees, etc.
12. If the client has introduced shift work, night work, full continu regimes or other new labour regimes, then he shall inform Manpower about the way this needs to be applied for the temporary workers and the rectifications which are to be made by the end of the reference period. Necessary rectifications such as additional salary payments and overtime payments, irrespective of the reason thereof, will be invoiced to the client, to be increased with the applicable multiplier.
13. The temporary workers fall under the civil liability of the client, who shall be exclusively liable (and indemnify Manpower) for all damages caused by the temporary worker to the client and/or third parties (art. 1384, par. 3 CC). It is recommended to include a “temporary staffing clause’ in the civil liability insurance of the client. Manpower will in no event be liable for:

• • Damage, loss or theft of material, money or goods which have been conferred to the temporary worker;
  • Loans or advances, in cash or kind, which have been granted to the temporary worker;
  • The consequences resulting from lateness or absence of the temporary workers.

Manpower cannot be held liable for indirect damages. The liability of Manpower will in any event be limited to an amount of €100.000 per claim and/or in the annual aggregate.

14. The client needs to ensure that the temporary worker benefits from the same treatment and protection as its own staff regarding occupational safety and hygiene. The temporary worker can only execute the work as mentioned on the worksite form or, if no worksite form is required, as mentioned in the description of the worksite, professional qualification and results from the risk evaluation, as included in the commercial agreements. Pursuant to the Royal Decree of 19/02/1997, the clients is required to:

• • Draft a worksite form when applicable and to transmit this to Manpower together with his request;
  • Provide work clothes and personal safety equipment for the temporary worker;
  • Provide cleaning, repair and maintenance in a normal ready-to-use condition of the work clothes and personal safety equipment, even if a deviating commercial agreement would be concluded regarding the delivery thereof.

15. If a temporary worker is involved in an industrial accident, then the client will at its own expenses take all necessary, urgent measures, immediately inform Manpower about this industrial accident and provide all necessary information for the declaration of the industrial accident, including drafting a detailed report in case of a serious industrial accident. The client is exclusively liable for timely providing the correct information and will indemnify Manpower against any consequences resulting from the delay or omission on its behalf.
16. The client is not entitled to have the provided temporary worker work outside of Belgium (so-called “secondment”) without prior approval from Manpower. The client should launch a request to Manpower in this respect, at the latest five (5) business days prior to the start of the assignment abroad, whereby all necessary information (and any subsequent changes) is provided. This information includes inter alia the duration of the assignment abroad, the place, contacting person, person executing the employer’s authority on the spot and/or will manage social documents and other information which Manpower deems to be useful. Manpower shall decide at its sole discretion whether the secondment can take place, without the client being able to assert any claim or right to compensation against Manpower. The client undertakes to respect the decision of Manpower, to comply with all legal obligations regarding the secondment (such as notifications, licenses, contacting persons…) and to fully indemnify Manpower against any loss and/or penalties which would result from non-compliance with the aforementioned obligations.
17. The services of Manpower willl be invoiced on the basis of:
    • The signed client contract and timesheets as transmitted in writing or electronically to the client by Manpower.

The client will not contest the content of the transmitted timesheets nor the validity of the signature by its personnel, mandatories, appointees…In case of automatic processing of the performances, the client is deemed to have tacitly and definitely approved the data which are transmitted automatically or electronically to Manpower. The client is therefore exclusively liable for errors regarding automated sending and shall indemnify Manpower against any consequences resulting therefrom.

It is not allowed to have the temporary worker work less than the number of hours as included in the request. In such event, the non-performed hours shall be fully due by the client. If the temporary worker would, by his own hand, perform less hours than initially included in the request, then the client shall inform Manpower of the reasons thereto.

The timesheets are transferred weekly by the client to Manpower, at the latest on Monday morning (prior to noon) following the week during which the temporary worker has worked. If the timesheets are not transferred in due time, then the temporary workers are deemed to have worked the number of hours as initially included in the request of the client, and this is deemed to be tacitly and finally approved by the client.

If the actual performed hours exceed the number of hours included in the request and/or on the timesheets, the additional hours (and possible overtime) will be fully invoiced to the client. 

• • The agreed multiplier and/or rate. 

Special work (such as overtime, shift hours, working in shifts, night work, work on Sunday and bank holidays…) will be paid to the temporary worker in accordance with the CBA/legislation applicable within the company of the client. The wage supplement to the paid will be invoiced towards the client applying the multiplier and/or rates which apply for the basic wage.

The multiplier and/or rates can be unilaterally increased by Manpower in case of an increase of factors determining the actual salary cost, including but not limited to direct or indirect employers’ charges, indexations and conventional salary increases.

• • The salary and benefits (incl. indexations) to which the temporary worker would be entitled, should he have worked as permanent staff for the client and the allocation modalities (art. 10 Act of 24 July 1987).

 This includes inter alia paid hours/days off which are granted by the client to its employees such as non-statutory holidays, holidays, extra days holiday, leave of absence, etc. which are fully invoiced to the client applying the multiplier and/or rate applicable on the basic salary.

18. The invoices of Manpower are payable within 15 days following the invoice date at registered office of Manpower, net and without discount, unless otherwise agreed in writing. Payment is to be made preferably by wire transfer or by direct debit. If invoices are paid, with prior written approval by Manpower, by any other means, then the costs for collection will be at the expense of the client. The temporary worker will not be entitled to collect invoices. In case of late payment of the invoice, the invoiced amount will be increased as of right without prior formal notice with interests at an interest rate of 10% on annual basis. Furthermore, a lump sum penalty of 15% on the invoiced amount shall be due as of right, with a minimum amount of €125 and a maximum amount of €12.500. In case of late payment of an invoice, also all other invoices will be immediately due and payable as of right, regardless of whether these invoices have been expired and any payment modalities which have been agreed. Manpower will be entitled, as of right and without formal notice to set off all unpaid amounts (including interest due to late payment, collection and legal costs) against any payments to which the client would be entitled, irrespective of the reason thereof.
19. Invoices can be contested within 8 days following invoice date, by registered letter in which the reasons for contesting the invoice are being set out. Any possible dispute will not suspend the payment obligations of the client. Furthermore, it is not allowed for the client to withhold money or deduct this from the invoice. Invoices which are not formally contested, are deemed to be finally approved by the client. Payment modalities which have been granted in writing will automatically expire in case of (i) legal recovery by Manpower of outstanding invoices or (ii) a written formal notice due to non-compliance by the client with its contractual obligations or (iii) writ of summons by the Social Security against the client or (iv) any other signs of dubious solvency of the client. In such events will the invoices be due and payable as of right, regardless of whether these invoices have already expired. In case of late payment will Manpower be entitled to unilaterally suspend the agreement until full payment for all invoices has been received. Any damages resulting therefrom shall be borne by the client.
20. Should the client not comply with its legal and/or contractual obligations, including these general conditions, then Manpower will be entitled to terminate the existing contracts as of right and without any prior notice and to stop the temporary workers from working with the client, without any indemnity being due.
21. The client is not entitled to employ a candidate or temporary worker presented by Manpower within twelve (12) months following the presentation of the candidate or the latest temporary staffing assignment, unless they have been provided by Manpower to the client as temporary worker for a period of at least 125 full-time Social Security Days. Should the client employ the temporary worker for the same or another function, prior to the expiry of this period, then a lump sum penalty equal to 20% of the annual salary of the temporary worker, with a minimum amount of €6.500, shall be due by the client to Manpower. This agreed lump sum penalty is based on the costs for prospection, selection and screening of an employee with the same competences and the lost profit for Manpower. Manpower reserves the right to claim a higher indemnification, should the actual suffered losses exceed this lump sum penalty.

The client undertakes to inform Manpower in writing about his intentions to employ a candidate/temporary worker. Is to be considered as “employment” of a candidate/temporary worker:

• Concluding an employment agreement or independent services agreement between the candidate/temporary worker and the client; or
• The candidate/temporary worker being provided by a third party (for example staffing agency) to the client;
• Concluding a services agreement with a third party having employed the candidate/temporary worker to provide services with the client.

Employment by one of the following third parties, shall also be considered as employment by the Client, in case the third party is being:

• A parent company or subsidiary of the client as mentioned under art. 1:15 Company Code;
• A part of a consortium with the client pursuant to Article 1:19 Company Code;
• A related or associated company of the client pursuant to art. 1:20 Company Code;
• A part of the client portfolio of the client, should the candidate/temporary worker be presented by the Client to its clients aiming to be recruited by these clients.

The gross annual salary of the candidate/temporary worker is calculated as follows: applicable hourly wage applicable within the company of the client for that particular function (with as a minimum the scales of the Joint Committee of the Client) x the average amount of hours per week applicable for the sector of the client x 13/3 x 13,92. For temporary workers, the hourly wage as included in the latest temporary staffing agreement shall be taken into account.

22. Nullity of one of the clauses in these general terms and conditions will in no event lead to nullity of all general terms and conditions as a whole. In case of a legal conflict, the competent courts will be entitled to mitigate the scope of application of the respective clause to what is legally acceptable.
23. Any dispute which may arise between the parties regarding the validity, interpretation, execution or termination of their agreement (including these general terms and conditions), shall belong to the exclusive competence of the courts of Brussels. Belgian laws shall exclusively apply in this respect.