General Conditions « Temporary Staffing » – Manpower Belgium

  1. These general terms and conditions have been drawn up pursuant to current legislation, i.e. the Law dated 24/07/1987 governing temporary employment, agency work, and the supply of labour to clients, including the Collective Labour Agreements n° 108 dated 16/07/2013 and those of the Joint Industrial Committee PC 322 for temporary employment.
  2. The temporary staff shall be supplied by Manpower Belgium NV/SA (hereinafter « Manpower ») in accordance with the terms and conditions agreed at the time of the request for staff and the general terms and conditions stipulated below, which form an integral part of the agreement entered into between the client and Manpower.  Any amendment to these general terms and conditions shall be agreed in writing.
  3. These general terms and conditions – and in particular Article 22 – shall also apply from the time the client submits a request for staff to Manpower and Manpower introduces applicants to the client.
  4. Pursuant to the Collective Labour Agreement 38 quater dated 14/07/1999, Manpower shall not discriminate against any applicant; consequently, the client shall only be permitted to stipulate job relevant criteria in their request for staff.
  5. At the start and throughout the term of the agreement the client undertakes to immediately communicate to Manpower all necessary information and also all changes in writing. The necessary information shall include, but shall not be limited to :
    – the legal reason for engaging temporary staff and all information concerning the presence/absence of a trade union delegation;
    – the terms and conditions of remuneration of the permanent staff, including bonuses and various benefits which are customary at the client’s company, in addition to all information concerning the methods by which they are awarded;
    – the activities, the position, the professional qualification required, the risk assessment results, medical supervision and personal protection equipment;
    – possible strikes or lock-outs or other forms of temporary unemployment;
    – risks of possible industrial accident;
    – the operation of Dimona [immediate declaration to the National Department for Social Security], for the purpose of which all information shall be transmitted prior to the supply of the temporary staff and at the latest 1 hour prior to the start;
    – the late attendance or the absence of the temporary staff;
    – the non-renewal of an assignment and the reasons for non-renewal.
    The client shall bear sole liability for any consequences resulting from the late communication, incomplete or errors in this information. Any resulting corrections and/or costs (be it due to labour law, social security law or tax law) shall be invoiced to the client.
  6. The client shall bear sole liability for the correct application of the legal reasons for and terms of temporary employment. The client shall ensure that all the necessary permits and declarations for the employment of the temporary staff have been submitted as provided for by law.
  7. Successive Day-Contracts for Temporary Work are allowed insofar the client can prove the necessity for flexibility in accordance with the applicable Law and the Collective Labour Agreements. The need for flexibility exists if of one of the following situations exist:  when the work volume 1° is largely dependent on external factors; 2° fluctuates significantly; 3° is linked to the nature of the assignment. The client is solely responsible for evidencing the need for flexibility. In this regard, Manpower does not dispose of any power of appreciation. If Successive Day-Contracts are used contrary to the applicable Law, the Collective Labour Agreements and this clause, Manpower may be held liable to pay an indemnity equivalent to two weeks’ wages under a Temporary Employment Contract on top of the normal wages it owes the worker employed under Successive Day Contract. Since the continuous presence of the need for flexibility is the sole responsibility of the client, Parties agree that Manpower can invoice the client for the cost of the sanction using the applicable multiplier together with a reasonable fixed rate administrative cost of 250€.
  8. Inflow Motive: A) The client must provide Manpower with a written statement  to inform Manpower whether the current opportunity is the first, second or third attempt to fill a given vacancy with Temporary Workers under the provisions of the Inflow Motive was undertaken.  B) The Temporary Workers who terminates an open-ended employment contract with his previous employer in order to work as an ‘inflow’ Temporary Worker, can be given an employment guarantee of one month. C) If the employment/collaboration is discontinued by the client before the end date of the employment guarantee as stipulated under point B of the current clause, the parties agree that Manpower can invoice the client for the equivalent amount of the wages (in the broadest sense) using the applicable multiplier, that would have been owed to the end of the term of the employment guarantee as stipulated by Law. Furthermore, Parties agree that Manpower can invoice the client for a reasonable fixed rate administrative cost of 250€.
  9. Manpower shall not in any case be liable for the consequences of the absence and/or the late attendance of their temporary staff.
  10. The client cannot call upon the services of Manpower in the case of temporary unemployment at their company. In such case, the client shall immediately inform Manpower of this fact in writing. The compulsory withdrawal of temporary staff in these cases shall not impose any obligation upon Manpower to pay compensation to the client.
  11. The client may only require Manpower’s temporary workers to execute his own activities and may under no circumstances make them available to third parties. The client may only allow temporary workers to execute work for a third party that is compliant with the legal regulations (amongst others article 31 of the Law of 24 July 1987). The client is solely responsible for all irregularities and will indemnify Manpower against  all possible claims resulting from an unlawful posting of workers or irregular agency work, including all penalties that may be imposed on Manpower by any governmental authority (social security, tax, …). All costs and damages that Manpower may suffer as a result, will also be fully at the expense of the client.
  12. Pursuant to Article 19 of the Law dated 24 July 1987, the client shall be liable for applying the provisions of the Law with regard to employment regulations and health and safety at work regulations applicable to the workplace, and this for the term of employment of the temporary staff by the client. This entails that the client shall treat the temporary staff on an equal footing with their permanent staff, for example, with regard to working hours, reduction of working hours, compensation, breaks, national holidays, Sunday working, night shifts, etc. The client will inform Manpower if work in shifts, night work, full continue or if other new work regimes are applicable in the company and how theses regimes must be applied to temporary staff. The client shall also keep track of and inform Manpower on his own initiative of all rectifications to the work regimes that need to be made for the temporary staff at the end of the reference period The client accepts that any supplementary payment of (over)work will be billed, whether these payments are the result of the information communicated by the client, or if Manpower is forced, for whatever reason to pay supplements. These supplements will be invoiced with the coefficient, applicable at the time of the corrections.
  13. Pursuant to Article 1384 paragraph 3 of the Civil Code of Law the client bears civil liability. Consequently, the client  shall bear sole liability for any loss or damage caused by the temporary staff to any third party. It is recommended that the civil liability insurance of the client includes a “temporary employment clause”. Manpower shall not be responsible for  any liability for any loss or damage caused by the temporary staff to the client during and as a result of their employment by the client. Manpower shall not be responsible for any liability in the case of loss or damage, theft or disappearance of equipment, money or goods entrusted to the temporary staff. Manpower shall not be responsible for any liability for any loans or money advances, in kind or in cash, which may possibly be granted to the temporary staff by the client.
  14. Pursuant to Article 10 of the Law dated 24/07/1987, the temporary staff shall be entitled to the same gross salary, including index linked payments and conventional increases, bonuses, meal vouchers and other salary components as if they were employed on a permanent basis by the client. Insurances and other benefits shall not be considered as salary components. Pursuant to Article 5 of these general terms and conditions the client shall be required to communicate these salary details to Manpower. The client shall bear sole liability for any consequences resulting from the late, incomplete or erroneous communication of this information. Any resulting corrections and/or costs shall be invoiced to the client.
  15. The temporary staff shall benefit from the same level of protection as the other company employees with regard to health and safety at work and hygiene. The temporary staff shall only be allowed to perform those duties that are stipulated in the job description or, if no job description is required, those stipulated in the special terms and conditions of business, in particularly those describing the position, the required professional qualification, and the result of the risk assessment. Pursuant to article 5,4° the Royal Decree dated 19 February 1997, the client shall where relevant complete the job description and submit this to Manpower prior to the supply of the temporary staff. The client shall bear responsibility for the work clothing and the personal protection equipment, as well as for the cleaning, repair, and for maintaining it in a normal ready-to-use condition, even if a different business agreement concerning the supply thereof has been entered into with Manpower.
  16. In the event of an industrial accident involving temporary staff, the client shall, after first having taken all the necessary emergency measures, immediately contact Manpower and provide all the necessary information to draw up an accident form. In the case of any delay or failure to comply with this, the client may immediately be held liable for all loss and damage that arises.
  17. The client shall bear sole responsibility for returning the signed customer agreement and (supervision of) returning the completed and signed job sheet. In case of failure to do so, the client shall not be able to invoke the non-signature against Manpower, and Manpower shall invoice the client for the services actually performed by the temporary staff, with as a minimum the contractually agreed services.
  18. By signing the job sheet, the client confirms the accuracy of the listed services and the duties performed by the temporary staff. This signature shall take place immediately upon completion of the services, described on the relevant job sheet, to ensure that the client does not hinder the smooth and correct remuneration process by Manpower. The client shall not dispute the validity of the signature of his employees or authorized representatives. If the services provided are processed automatically, the client shall always agree with the service details as these are communicated automatically or electronically to Manpower, unless otherwise agreed in writing. Only the client shall be liable in the case of any errors in the automatic data transmission.
  19. Invoicing shall be based upon:
    – the services as stated on the job sheets or as transmitted electronically by the client, with as a minimum the hours requested by the client, except if less hours are performed due entirely to the temporary staff and if the information obligation stipulated in Article 5 of these terms and conditions has been complied with; if the client does not supply the duly completed and signed job sheets, invoicing shall take place upon the basis of the services actually performed by the temporary staff, with as a minimum the hours requested by the client; within this framework, any non-working hours or days granted by the client to its permanent staff and remunerated, such as non-statutory holidays, holidays, extended week-ends, etc. to which the temporary staff are also entitled, shall also be considered as services and be invoiced as such to the client;
    – the coefficient agreed and/or the tariff agreed: this coefficient and/or this tariff shall be increased unilaterally by Manpower in the case of any increase in the direct or indirect employers’ charges as well as of any possible other actors which determine the actual salary cost; this tariff shall also be increased unilaterally by Manpower in the case of any increase in the basic salary of the temporary staff as a result of index-linking of the salaries and the conventional salary increases applicable at the company of the client;
    – the other written price agreements as determined in article 14 of these general conditions
    – increased by the applicable rate of VAT.
    For special services (such as overtime, shift work, night work, on Sundays or national holidays, etc.) the temporary staff shall be remunerated pursuant to the relevant legislation and/or Collective Labour Agreement applicable to the client. The resulting salary supplement to be paid shall be invoiced to the client at the same coefficient that applies to the basic salary of the temporary staff or that used to calculate the tariff.
  20. The client will communicate to Manpower before start and at the latest on the first day of the temporary employment, all information, including, but not limited to, a correct PO-number, in order to allow Manpower to raise a valid  invoice. The absence of a correct PO-number does not absolve the client of its obligation to pay the full amount of the invoice within the agreed upon timeframe. If it is necessary for Manpower to issue a corrective invoice  due to the absence of any of the necessary invoice information, including a correct PO-number, Manpower will have the right to invoice this additional administrative costs to the client.
  21. Manpower invoices shall be payable within 15 days of the invoice date, net and undiscounted, unless otherwise agreed in writing. In the case of payment other than in cash, by money transfer, direct debit or cheque payment, any collection costs shall be charged to and paid by the client. Upon default of payment on the due date of the invoice, the invoiced amount shall ipso jure and without any prior notice of default be increased with a 10% interest rate on annual basis. Furthermore, default of payment of the invoice 30 days after its due date, and following a written notice of default, shall incur a one-off minimum fee of 15% on the amounts due, with a minimum fee of 125€ and a maximum of 12.500€. The late payment of one invoice makes all other invoices immediately due and owing.  Any method of payment granted in writing shall ipso jure expire as soon as Manpower has to take legal proceedings to recover the outstanding invoices from the client. Manpower is entitled to deduct, automatically and without prior written notice, all unpaid amounts (including all interests, recuperation and legal costs) from any reimbursement to which the Client may be entitled for whatever reason.
  22. Any complaints relating to the invoices shall be submitted to Manpower within 8 calendar days following the date of invoice by registered letter stipulating the grounds for complaint. The client is not permitted to deduct any amount of the invoices. Any invoicing disputes shall not suspend the payment terms of the invoices. After this delay, no formal protest of the invoice will be permitted, and the invoice will be deemed accepted. All written authorization concerning any payment delay will be void as soon as Manpower has to proceed to a legal recovery of any invoice that is due. In the case of a written notice of default, in the case of summonses by the National Department of Social Security (RSZ) or other signs of dubious solvency on the part of the client, the methods of payment granted by Manpower shall also ipso jure expire. In such cases all invoices (even those which are not yet due) shall ipso jure fall due. In the event of the non-payment of expired invoices, Manpower shall be entitled to unilaterally suspend the execution of the agreement until the invoices are settled. The temporary staff shall not be authorized to collect invoices.
  23. To guarantee the repayment of all outstanding sums, the customer gives Manpower in pledge:
    – all current and future claims and receivables opposite or at Manpower, where Manpower, as debtor of the arrears, expressly acknowledges to take note of this pledge,
    – all present and future claims on third parties, for whatever reason, such as trade receivables and other claims against clients, resulting from performances and services, claims from returns of movable and immovable property, claims against credit or other financial institutions, claims concerning compensation of damages, pensions, insurance payments, indemnities  relating to social security, or claims on the government in the framework of the tax regulations.
  24. If the client does not fulfil their legal obligations or the general terms and conditions, and also in the case of default of payment, Manpower shall have the right to consider any existing agreements as dissolved and to immediately withdraw their temporary staff, without incurring any liability to pay compensation.
  25. In the case of premature termination and solicitation of the temporary staff:
    If before the end of a minimum period of 125 full-time worked Social Security-Days, and without authorization from the temporary employment agency, the client enters into an employment relationship with the temporary worker/employee for that same or for a different position, the client shall pay the temporary employment agency, by way of compensation for loss or damage incurred, an amount equivalent to 20% of the gross annual salary of the temporary worker/employee concerned, with a minimum of 6.500€. The aforementioned compensation shall be fixed by mutual agreement between the client and Manpower that the loss or damage, suffered by the temporary employment agency, is based, for example, upon the costs which the client would have to incur for the search, selection and screening of an employee holding the same qualifications, as well as the loss of profit, without prejudice to the right of Manpower to prove that the loss or damage suffered by them exceeds the aforementioned compensation. The client shall also be liable to pay this compensation if the temporary staff, upon termination of the temporary employment agreement, enters into an employment relationship with the client as long as a period of 125 full-time worked social security-days, has not yet expired between the first day of the temporary employment and the first day of the employment relationship with the temporary staff. The client undertakes to inform the temporary employment agency in advance and in writing of their intention to enter into an employment relationship with the temporary staff.
    Entering into an employment relationship with the temporary staff shall mean:
    – The client entering into an employment relationship with the temporary staff;
    – Allowing the temporary staff to be supplied to the client by a third party (e.g. another temporary employment agency);
    – Entering into a contracting agreement with the temporary staff or with a third party who has recruited the temporary staff for this purpose.
    – The temporary staff and a third party entering into an employment relationship, in which the client and that third party belong to the same group, parent company or subsidiary or are linked or associated companies, in accordance with Title II, Chapter II of the Company Code of Law;
    – Entering into an employment relationship by the temporary worker and a third party, belonging to the client-portfolio of the client.
    Temporary staff shall mean:
    – The temporary staff selected by the temporary employment agency and supplied to the client by virtue of an employment agreement;
    – The applicant-temporary staff introduced to the client by the temporary employment agency;
    Gross annual salary of the temporary staff shall mean:
    – If the temporary staff has already worked: The last valid hourly salary x the average number of hours per week applicable in the sector of the client x 13/3 x 13.92;
    – If the applicant-temporary staff has not yet worked: the salary paid by the client for the position (the minimum being set by the tariffs decided by the Joint Industrial Committee of the client) x the average number of hours per week applicable in the sector of the client  x 13/3 x 13.92.
  26. In the event of the agreement being dissolved unilaterally, without premature termination: Pursuant to Article 1226 and the following of the Civil Code of Law, where the client terminates the agreement unilaterally and prematurely shall pay Manpower a fixed amount of compensation equivalent to the sum of the invoices which Manpower would have raised  if the agreement had been executed in full, with a minimum of 125€ per calendar day. This also applies in the case of nullity of the agreement between the client and Manpower as a result of a breach by  prior of the legal obligations  or as a result of erroneous information provided by the client upon entering into the relevant agreement. However, Manpower reserves the right to claim more compensation providing that they can prove the extent of the loss or damage.
  27. These general terms and conditions shall not contain any deletions and shall take priority over any other agreement. Any deviation from these general terms and conditions shall only be possible if this is agreed in writing.
  28. The nullity of one of the clauses in these general terms and conditions shall in no case entail the invalidity of the overall terms and conditions.
  29. The agreement will be binding to all parties, as well as their successors in title.
  30. Every dispute arising between the parties concerning the validity, interpretation, performance or termination of their agreement will fall under the exclusive competence of the District Courts of Brussels. Belgian law will be the sole applicable law.

Manpower (Belgium) SA/NV – General Terms & Conditions Temporary Staffing – Version December 2016 – LEG/6/0/ENG