ABU CLA no longer binding per June 1st, 2021

Companies that supply employees to third parties to work under their direction and supervision are also referred to as temporary employment agencies. These temporary employment agencies must apply for one of the employment collective labor agreements (hereafter: CLA), namely the NBBU CLA or the ABU CLA. The temporary employment agency has the free choice to join one of these two CLA’s. However, the ABU CLA has been declared binding. This means that the ABU CLA also applies to temporary employment agencies that have not joined one of the employment CLA’s. The ABU CLA automatically applies to these so-called “unbound” temporary employment agencies.

On June 1st 2021, there will be an interruption of the CLA for temporary workers that is now declared binding. This can have major consequences for temporary employment agencies that are not affiliated with the ABU or NBBU associations because an unbound employment agency is no longer obliged to follow the CLA for temporary workers. For temporary workers, this means that the CLA provisions are no longer applicable. The terms of employment included in the agency work employment contract will continue to apply as long as the employment contract lasts and it is not stated that they will only be applied if the CLA has been declared binding. The other conditions are stated in the general law and regulations, which are written in the Civil Code.

There are a number of important points that the employment agency must take into account:

1. Salary

The temporary employment CLA stipulates that a temporary worker is at least entitled to the hirer’s remuneration. This ensures that the temporary worker earns and receives the same salary as the other employees of the hirer who perform the same work. Now that the declaration of general binding effect on the ABU collective labor agreement is interrupted as of June 1st 2021, and the independent companies are therefore dependent on general legislation and regulations, a stricter variant of the hirer’s remuneration will apply (article 8 WAADI). This article provides that the temporary worker is not only entitled to the same salary, but to the same employment conditions. As a result, the temporary worker could suddenly be entitled to more vacation days, a bonus or another pension scheme.

2. Phase system

The temporary employment CLA offers flexibility with regards to the number of temporary employment contracts that can be offered to the same temporary worker. This flexibility will lapse on June 1st 2021 because the period and chain system of the general laws and regulations will apply. This means that a temporary worker can only be offered 3 fixed-term contracts for the maximum joint term of 36 months. If the work is continued thereafter, the agency work employment contract is seen as an agreement for an indefinite period (Article 7: 668a in the Civil Code). General laws and regulations do contain an exception for temporary employment contracts, so that the aforementioned period only starts to run after the temporary worker has worked for more than 26 weeks. During the first 26 working weeks, an unlimited number of agency work employment contracts can be offered to the temporary agency worker without this having consequences for the chain scheme.

As an escape from the chain scheme, the chain is broken if there is an interruption of more than 6 months between two contracts. In that case, the counting of the period and chain system starts again. The option to have the chain scheme only commencing after 26 weeks worked can only be used again when the temporary worker has not worked for the temporary employment agency for a full year.

As an escape from the chain scheme, the chain is broken if there is an interruption of more than 6 months between two contracts. In that case, the counting of the period and chain system starts again. The option to have the chain scheme only commencing after 26 weeks worked can only be used again when the temporary worker has not worked for the temporary employment agency for a full year.

3. Notice period

Under general laws and regulations, a notice period must be observed. The length of the notice period depends on the length of the employment:

  • one month, if the employee has been employed for less than five years;
  • two months, if the employee has been employed for more than five years and less than ten years;
  • three months, if the employee has been employed for more than ten years, but less than fifteen years;
  • four months, if the employee has been employed for more than fifteen years.

The notice period is a minimum period, so a longer notice period may be observed, as long as the conditions from the law are met.

In case of a temporary employment contract, a notice period is only valid if there is an “interim termination clause”, in other words the option to terminate the employment contract interim. If this is not included, it means that the employment contract cannot be terminated.

4. Temporary employment clause

The temporary agency employment contract has the option of including a temporary employment clause in the temporary agency employment contract. As a result of the temporary employment clause, the agency work employment contract can be terminated at the time that the hirer requests this, provided that the temporary worker has not yet worked for 78 weeks at that time. Therefore, the temporary employment clause makes it possible to terminate the agency work employment contract purely because the hirer has requested this. The same type of option has been included in general legislation and regulations, but the term has been reduced to 26 weeks (Article 7: 691, third paragraph of the Civil Code). This means that once the temporary worker has worked for 26 weeks, the agency clause can no longer be used to terminate the agency work employment contract. After June 1st 2021, this will apply to all temporary workers who have worked more than 26 weeks.

If the temporary employment clause no longer applies, the agency workers will receive the dismissal protection that the general laws and regulations offer. This means that the temporary employment contract can no longer be terminated so easily. If the agency work employment contract can be terminated, the notice periods indicated in point 3 apply.

Negotiations for new CLA’s have been ongoing for some time, with the aim of concluding new collective labor agreements this year. It is also to be expected that the ABU will request the Minister of Social Affairs and Employment to declare the CLA binding again.

For more information or questions about the above, please contact AAme Legal en AAme Salary Advisors.