General terms and conditions
1. These general terms and conditions have been drawn up in accordance with the legislation in force, namely the Act of 24 July 1987 on temporary work, temporary agency work and the posting of employees in the service of users, including the applicable Collective Bargaining Agreements of the National Labour Council (NAR) and joint industrial committee PC322 for temporary agency work, as well as the Act of 14 July 1991 on commercial practices.
2. The temporary workers are posted under the conditions agreed upon in the application and subject to the general terms and conditions set out below, which form an integral part of the agreement concluded between the user and IMPACT NV and which have been drawn up in accordance with the Act of 24 July 1987. Any deviation from these general terms and conditions must be agreed in writing.
3. These general terms and conditions, and in particular Article 20, also apply as soon as the user makes a request to IMPACT NV and IMPACT NV proposes candidates to the user.
4. In accordance with Collective Agreement 38 quater of 14/07/1999, IMPACT NV may not treat the candidates in a discriminatory manner; therefore, the user is only allowed to formulate relevant criteria in its application.
5. The user undertakes to communicate all necessary information as well as any changes immediately and preferably in writing, at the start and during the term of the contract, to IMPACT NV. Without being exhaustive, this certainly applies in the following cases:
concerning the reason for employment of temporary agency workers and the presence or absence of a trade union delegation;
concerning the remuneration conditions for permanent staff, including premiums and various benefits that are customary in the user’s company, as well as the terms and conditions for allocation;
concerning the activities, the workstation, the required professional qualification, the result of the risk assessments, medical supervision and personal protective equipment;
concerning possible strike or lock-out situations or other forms of temporary unemployment;
concerning a possible work accident;
concerning the functioning of the Dimona electronic declaration system, which should have been used to pass on all information before the start of the posting of temporary workers;
concerning non-renewal of an assignment.
The user is solely liable for the consequences arising from the late, insufficient or incorrect transmission of this information. All corrections and/or costs caused by this will result in additional invoicing to the user.
6. The user bears responsibility for the correct application of the grounds for and periods of temporary agency work; within the framework of these grounds, it provides, in the cases provided for by law, for the necessary authorisations and communications regarding the employment of temporary workers.
7. IMPACT NV is in no way liable for the consequences of the absence and/or the late presence of its temporary workers.
8. The user may not use the services of IMPACT NV in the case of temporary unemployment, strike or lock-out at its company. When this is the case, the user must inform IMPACT NV of this immediately in writing. The mandatory withdrawal of temporary workers in these cases does not give rise to the payment of damage compensation by IMPACT NV to the user.
9. During the period of employment of the temporary worker at the user, in accordance with Article 19 of the Act of 24 July 1987, the user is responsible for application of the provisions of the Act regulating and protecting labour in force at the place of employment. It follows that the user must treat the temporary workers as equal to its permanent staff, including with regard to working time, reduction of working hours, compensations, breaks, holidays, Sunday work, night work, the well-being of the temporary worker at work, etc.
10. The civil liability provided for in Article 1384 Paragraph 3 of the Belgian Civil Code rests with the user. The latter is therefore solely liable for all damage caused by the temporary worker to third parties. The inclusion of a “temporary employment clause” in the user’s civil liability insurance policy is recommended. IMPACT NV is also not liable for damage caused by the temporary worker to the user during and as a result of his or her employment with the user. IMPACT NV also is not liable in the event of damage to, as well as loss, theft or the disappearance of material, money or goods entrusted to the temporary worker.
With regard to the selection, the liability of IMPACT NV can never be invoked if the user itself handles the selection of the candidate temporary workers. IMPACT NV is also not liable for loans, advances, in kind or in cash, which the user may have granted to the temporary worker. Moreover, the reclaiming of costs resulting from the use among others of the telephone for private purposes, meals consumed in the company restaurant, lawful purchases etc. will take place without the intervention of IMPACT NV.
11. Pursuant to Article 10 of the Act of 24/07/1987, temporary workers are entitled to the same gross wage, including indexations and standard increases, premiums, meal vouchers and other wage components as if they were employed by the user on a permanent basis. Based on Article 5 of these general terms and conditions, the user must communicate this wage information to IMPACT NV. The user is solely liable for the consequences arising from the late, incomplete or incorrect transmission of this information. All corrections and/or costs caused by this will result in additional invoicing to the user.
12. The temporary worker enjoys the same level of protection as the other employees of the company with regard to work safety and work hygiene. The temporary worker may only carry out the work as stated on the workstation datasheet or, if no workstation datasheet is required, as stated in the special commercial terms and conditions, in particular in the description of the workstation, the required professional qualification and the result of the risk assessment. In accordance with the Royal Decree of 15/12/2010, the user must, in the cases provided for, complete the workstation datasheet and submit it to IMPACT NV before posting of the temporary worker. When preparing this workstation datasheet, the hirer must seek the advice of its health and safety department and occupational physician. The user bears (in accordance with Article 11 of Royal Decree of 15/12/2010) final responsibility for making work clothing and personal protective equipment available, as well as for cleaning, repairing and maintaining these in their normal ready-to-use condition, even if a deviating commercial agreement on the delivery thereof has been concluded with IMPACT NV.
13. In the event of an accident at work involving a temporary worker, the user will, after having taken all urgently required measures, immediately notify IMPACT NV and provide all necessary information for preparation of the accident report. The user can be held directly responsible in the event of delay or omission.
14. The user is solely responsible for the return of the signed customer contract and (supervision of) the return of the completed and signed timesheets. Failing this, the user may not invoke non-signature to the detriment of IMPACT NV, and IMPACT NV will invoice the user for the actual work performed by the temporary worker.
15. By signing the timesheet, the user confirms the correctness of the stated performance and the execution of the work performed by the temporary worker. This signing will take place immediately after the performance described on the relevant timesheet, so that the user in no way prevents the smooth and correct settlement of the wage payment by IMPACT NV. The user will not dispute the validity of the signature by its appointees or mandataries. In the case of automatic timesheet processing, the user always agrees with the timesheet data as they are transmitted to IMPACT NV in an automated or electronic manner, unless otherwise agreed in writing. The user is solely responsible for errors in the automated transmission.
16. Invoicing is based on:
the time worked as stated on the timesheets or as transmitted electronically by the user, containing at least the hours requested by the user, except when less hours were worked due solely to the acts of the temporary worker and if the information obligation provided for in Article 5 of these conditions was met; in the absence of timesheets completed and signed by the user, invoicing is done on the basis of the actual work performed by the temporary worker, with a minimum of the paid free hours and days allocated by the user to its personnel, such as holidays, non-statutory holidays, bridging days (extended weekend), etc., to which the temporary worker is also entitled, also considered as work performed and thus invoiced as such to the user.
the agreed coefficient and/or the agreed rate: this is increased in the case of an increase in direct or indirect employer-paid expenses as well as in all possible other factors that determine the actual wage cost; this rate is also unilaterally increased by IMPACT NV in the event of an increase in the basic wage of the temporary worker as a result of indexations of wages and the standard wage increases that apply to the user.
the other wage components as provided for in Article 11 of these terms and conditions;
other written price agreements; plus the applicable VAT.
For special time worked (such as overtime, shift work, at night, on Sundays and public holidays, etc.) the temporary worker is remunerated in accordance with the law and/or Collective Bargaining Agreement applicable to the user. The wage supplement to be paid in this way is invoiced to the user based on the same coefficient applied to the basic salary of the temporary worker or used to calculate the rate.
17. All complaints regarding invoices must reach IMPACT NV by reasoned letter within eight calendar days after the invoice date. After this period the complaint is inadmissible.
18. The invoices of IMPACT NV are payable upon receipt, net and without discount. In the absence of payment upon receipt, the amount charged will, automatically and without prior notice of default, be subject to interest of 10% per year. In addition, by law, fixed damage compensation of 15% will be due on the sums owed, with a minimum of € 125 and a maximum of € 12,500 if our invoice remains unpaid for more than 30 days after the due date. Bills of exchange do not result in any deviation from this nor in any substitution of one debt for another (novation). The temporary worker is not authorised to collect our invoices. In the event of late payment, protested bill of exchange, checks without cover, bankruptcy, composition or any event that jeopardises the claim of IMPACT NV, IMPACT NV reserves the right to unilaterally terminate this agreement and/or the outstanding accounts (even those that have not expired) in their entirety within 24 hours after a registered letter, without the user being able to claim any damage compensation.
19. If the user does not comply with its legal obligations or the general terms and conditions, as well as in the event of non-payment, IMPACT NV has the right, without it being liable for any damage compensation, to regard the current agreements as rescinded and to withdraw its temporary workers immediately.
20. In the event of early hiring away:
If, before the end of a minimum period of 120 days worked (Unless agreed otherwise in the financial proposal), the user enters into an employment relationship with the temporary worker for the same or a different position without the intervention of IMPACT NV, the user shall pay to the temporary employment agency compensation for damage suffered equal to 20% of the gross annual salary of the temporary worker concerned (Unless agreed otherwise in the financial proposal). The aforementioned compensation is established on the basis of the mutual agreement between the user and IMPACT NV that the damage suffered by IMPACT NV is based, among other things, on the costs that the user would have to incur for prospecting, selecting and screening an employee with the same qualifications, as well as the lost profit, without prejudice to the right of IMPACT NV to prove that the damage suffered by it exceeds the aforementioned compensation. The user also owes this compensation if the temporary worker, after the posting has been terminated, enters into an employment relationship with the user, provided that 120 days have not elapsed between the first day of posting and the first day of the employment relationship with the temporary worker (Unless agreed otherwise in the financial proposal).
The user undertakes to inform the temporary employment agency in writing in advance of its intention to enter into an employment relationship with the temporary worker.
By entering into an employment relationship with the temporary worker, the following are understood:
the user concluding an employment contract with the temporary worker.
a third-party (including another temporary employment agency) making the relevant temporary worker available to the user.
concluding a contract for services with the temporary worker or with a third party which has hired the temporary worker for this purpose.
an employment relationship being entered into by the temporary worker and a third party, where the user and that third party belong to the same group, are a parent or subsidiary company or are related or associated companies, in accordance with Title II of the Belgian Companies Code.
By temporary worker, the following are understood:
a temporary worker selected by IMPACT NV who was made available to the user under an employment contract for temporary agency work.
the candidate temporary worker who was proposed to the user by the temporary employment agency.
By the gross annual salary of the temporary worker, the following are understood:
if the temporary worker has already worked: the last applicable hourly wage x the average number of hours per week applicable in the user’s sector x 4.33 x 13.92.
if the temporary worker has not yet already worked: the wage applicable to the user for the position in question (with the minimum wage scales of the user’s joint industrial committee) x the average number of hours per week applicable in the user’s sector x 4.33 x 13.92.
21. If this agreement relates to the provision of temporary workers to users who fall under joint industrial committee PC144 and PC145, when this is done in the context of occasional work with the application of a lump sum social contribution (Royal Decree of 22/12/2004), the following also applies:
The user undertakes to include in the attendance register the temporary workers posted by IMPACT NV in the context of occasional work. The user declares that the temporary workers posted by IMPACT NV in the context of occasional work, have not in the current quarter and the two preceding quarters, directly or through another temporary employment agency, worked for the user in a capacity other than that of the occasional worker. In the event of inaccuracy of the information provided by the user, or if the temporary workers were not included in the attendance register, the user will owe the temporary employment agency all the amounts that IMPACT NV must pay to the National Social Security Office due to incorrect application of the NSSO contributions in the context of the provision of temporary workers for occasional work in joint industrial committee PC144 and/or joint industrial committee PC145.
22. The competent service for prevention and protection of the user shall investigate each serious accident that happens to the temporary worker, and contact the health and safety expert of IMPACT NV, with the latter assisting in the investigation. The competent authority for prevention and protection of the user shall draw up a detailed report and send it to the Federal Inspection Service within 10 days after the accident. If an external expert is appointed by the Federal Inspection Service, the costs of this expert will be borne by the user. In the event of a very serious work accident, the user shall inform the Federal Inspection Service as soon as possible.
23. In the event of unilateral termination of the contract, without early hiring away: pursuant to Article 1226 and following of the Belgian Civil Code, the user that unilaterally and prematurely terminates the agreement will pay IMPACT NV lump sum compensation equal to the sum of the invoices that IMPACT NV would have issued if the agreement had been fully executed, with a minimum of 125 euros per calendar day. This also applies in the event of nullity of the agreement between the user and IMPACT NV as a result of non-compliance by the former with the legal obligations imposed on it or as a result of incorrect information provided by the user when concluding the relevant agreement. IMPACT NV, however, reserves the right to claim higher compensation if it can prove the extent of the damage.
24. The user declares that if overtime is worked by the temporary worker, this overtime is being worked due to an extraordinary increase in work or due to an unforeseen necessity.
25. Consecutive daily contracts for temporary agency work with the same user are permitted insofar as there is a need for flexibility on the part of the user in accordance with Article 33 of Collective Bargaining Agreement no. 108 and Article 8bis of the Act of 24/07/1987. The need for flexibility exists for 1 of the following reasons:
When the user’s work volume largely depends on external factors;
When the user’s work volume fluctuates strongly;
Or when the work volume is linked to the nature of the assignment.
The user is responsible for the need for flexibility and the proof thereof. The temporary employment agency does not have any discretion in this regard. If, contrary to the applicable regulations and contrary to the first paragraph of this article, successive daily contracts nevertheless are used, the temporary employment agency may be obliged to pay the temporary worker, in addition to the wage, compensation that corresponds to the wage that should have been paid if an employment contract for temporary agency work of two weeks had been concluded.
Because the user is responsible for the presence of a need for flexibility, the parties agree that the temporary employment agency will invoice the user for the cost of the penalty stated in the previous paragraph as well as an associated reasonable administrative cost.
26. With the intent to permanently hire the temporary worker if the evaluation is positive:
The user must inform the temporary employment agency in writing if a first, second or third attempt has been made to fill the specific job on the basis of the need to permanently hire new employees.
A temporary worker who, prior to posting, has terminated an employment contract of indefinite duration with the intent to be re-employed through temporary agency work, may be entitled to an employment guarantee of 1 month. If before the end of the employment guarantee provided for in §1, the cooperation is terminated or is not extended due to the actions of the user, the parties agree that the user must pay the temporary employment agency compensation equal to the amount of the wage, in the broad sense, that would be due until the end of the term of the employment guarantee (as provided for in Articles 28 and 29 Collective Bargaining Agreement 108). In addition, the user shall owe the temporary employment agency a reasonable administrative fee.
If the user passes on incorrect information, as a result of which the number of permitted attempts is exceeded, the temporary worker will be bound to the user by an employment contract of indefinite duration.
27. These general terms and conditions may not contain any deletions and take priority over all others. Any exceptions to these general terms and conditions must be agreed in writing.
28. In the event of a dispute and/or non-payment, only the court of Hasselt has jurisdiction.
This is a translation of the Dutch-language general terms and conditions. In the event of any ambiguity, the Dutch source text always applies.