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25 AOUT 2012. - An Act to amend Part XIII of the Programme Law (I) of 27 December 2006 with regard to the nature of labour relations

ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
Art. 2. In Part XIII of the Program Law (I) of 27 December 2006, the title of Chapter II is replaced by the following:
“Chapter II Administrative Committee on the Settlement of the Working Relationship. "
Art. 3. Section 329 of the Act is replaced by the following:
"Art. 329. § 1^er. An administrative commission of the working relationship is established with several chambers.
§ 2. The boards of the administrative commission referred to in paragraph 1 are each composed of an equal number of members appointed on the proposal of the Minister who has the middle classes in his or her duties among the staff of his or her administration or the National Institute of Social Insurance for Independent Workers, on the one hand, and of members appointed on the proposal of the Ministers who have the Social Affairs and the Employment in their responsibilities among the staff of their administrations or the National Office.
Each room is chaired by a professional judge.
§ 3. No member of the Chambers shall serve as a civil servant who is under the authority of the Ministers who have in their responsibilities the Social Affairs, the Average Classes and the Employment, and who is responsible for monitoring the enforcement of social security and labour law legislation.
§ 4. The members of the Chambers are appointed by the King.
§ 5. The King determines the composition and functioning of the administrative commission.
§ 6. The Administrative Committee may decide to hear experts from the sector(s) concerned or from the profession(s). "
Art. 4. In section 332 of the Act, paragraph 1^er is replaced by the following:
"Where the performance of the working relationship leaves the meeting of sufficient elements incompatible with the qualification given by the parties to the working relationship, valued in accordance with the provisions of this Act and its enforcement orders, or when the qualification given by the parties to the working relationship does not correspond to the nature of the presumed employment relationship, in accordance with Chapter V/1 and that this presumption is not reversed
(1) Article 2, § 1^er, 1° and 3°, of the law of 27 June 1969, Article 2, § 1^er, 1° and 3°, of the law of 29 June 1981 and article 3, §§ 1^er and 2, Royal Decree No. 38, and any provision made on the basis of these provisions;
(2) in general, any legal or regulatory provision that imposes or presumes the exercise of a profession or activity determined as an independent worker or employee within the meaning of this Act in an irrefragable manner. "
Art. 5. In Title XIII, Chapter V of the Act, the division into sections is repealed.
Art. 6. In section 334 of the Act, paragraph 1^er is replaced by the following:
« § 1^er. The King may establish a list of specific criteria specific to one or more sectors, one or more professions, one or more categories of professions or one or more professional activities that He determines. This list completes the criteria set out in section 333. "
Art. 7. Section 335 of the Act is replaced by the following:
"Art. 335. The King may exercise the jurisdiction which was recognized by Article 334 only after notice:
1) the Steering Committee of the Federal Guidance Office of the Information and Social Research Service, as provided for in Article 6 of the Social Criminal Code,
(2) of the relevant Joint Committees or Subcommissions. This notice is given by the National Labour Council when several Joint Commissions are competent. In the absence of a competent or effective Joint Commission or Subcommission, such notice shall be given by the National Labour Council,
3) of the Higher Council of Independents and P.M.E., which renders its opinion only after consulting the relevant sectors and professions, and if there is, the order or professional institute established by law for the profession concerned.
These three bodies give their opinions within four months of the request made by the Minister who has the Employment in his or her powers, the Minister who has the Social Affairs in his or her powers or the Minister who has the Middle Class in his or her powers.
If, within the time limit, no consistent and unanimous notice is given, the King may establish specific criteria for the sectors, occupations, occupations or occupations or the professional activities concerned only by a royal decree deliberated in the Council of Ministers. "
Ministers referred to in paragraph 2 may apply to bodies referred to in paragraph 1^erto give their views either on their own initiative or at the request of the relevant Joint Commissions or Subcommissions, the National Labour Council, the Higher Council of Independents and P.M.E. or the organizations represented therein.
If the competent ministers simultaneously receive several requests to seek the advice of the bodies referred to in paragraph 1^er, they set a schedule for the introduction of the notice requests in question.
Art. 8. In Title XIII of the Act, a chapter V/1 is inserted, which reads as follows:
“Chapter V/1. Presumption concerning the nature of the working relationship".
Art. 9. In chapter V/1 inserted by article 8, an article 337/1 is inserted as follows:
"Art. 337/1. § 1^er. This chapter is applicable to working relationships within the following framework:
1° the execution of the activities listed in Article 20, § 2, of Royal Decree No. 1 of 29 December 1992, concerning the measures to ensure the payment of the value added tax;
2° the exercise of the activity of performing on behalf of third parties, all kinds of surveillance and/or custody services;
3° the transport of things and persons on behalf of third parties, with the exception of ambulance services and the transport of persons with disabilities;
4° The activities that emerge from the scope of the parity commission for cleaning, which are not already covered in the 1°.
§ 2. The list provided for in paragraph 1^er may be extended by the King after requesting the opinion:
1) the Steering Committee of the Federal Guidance Office of the Information and Social Research Service, as provided for in Article 6 of the Social Criminal Code,
(2) of the relevant Joint Committees or Subcommissions. This notice is given by the National Labour Council when several Joint Commissions are competent. In the absence of a competent or effective Joint Commission or Subcommission, this notice is given by the National Labour Council,
3) of the Higher Council of Independents and P.M.E., which renders its opinion only after consulting the relevant sectors and professions, and if there is, the order or professional institute established by law for the profession concerned.
These three bodies must give their opinions within four months of the request made by the Minister for Employment, the Minister for Social Affairs or the Minister responsible for the Middle Class.
If, within the time limit, no consistent and unanimous advice has been given, the King may not resume within the scope of this chapter the sectors, occupations, occupations or occupations or the professional activities concerned only by deliberate decree in the Council of Ministers.
Ministers referred to in paragraph 2 may apply to bodies referred to in paragraph 1^er to give their views either on their own initiative or at the request of the relevant Joint Commissions or Subcommissions, the National Labour Council, the Higher Council of Independents and P.M.E., or the organizations represented therein.
If the competent ministers simultaneously receive several requests to seek the advice of the bodies referred to in paragraph 1^er, they set a schedule for the introduction of the notice requests in question.
§ 3. This chapter is not applicable to family labour relations.
In family working relationships, we hear:
(a) the working relationship between parents and allies to the third degree included and between legal cohabitants within the meaning of the law of 23 November 1998 establishing legal cohabitation;
(b) the working relationship between a society and a natural person, being a parent or ally up to the third degree included or a legal cohabitant either of the person alone or of those who together hold more than 50 per cent of the shares of the society in question. »
Art. 10. In chapter V/1 inserted by article 8, an article 337/2 is inserted as follows:
"Art. 337/2. § 1^er. The labour relations referred to in Article 337/1, are presumed to prove the contrary, to be performed in the bonds of a contract of work, when the analysis of the working relationship appears that more than half of the following criteria are met:
(a) Failure, in the conductor's head, of any financial or economic risk, such as:
- in the absence of personal and substantial investment in the company with equity, or,
- in the absence of personal and substantial participation in business gains and losses;
(b) Failure in the conductor of work, responsibility and decision-making power regarding the financial means of the undertaking in the conductor of the work;
(c) Failure, in the conductor's head, of any decision-making power regarding the procurement policy of the undertaking;
(d) Failure, in the conductor's head, of decision-making power with respect to the company's price policy, unless the prices are legally fixed;
(e) lack of an agreed work performance obligation;
(f) the guarantee of payment of a fixed allowance regardless of the company's results or the amount of benefits provided in the head of the work;
(g) not be the employer of staff recruited personally and freely or not have the opportunity to hire staff or to be replaced for the performance of the agreed work;
(h) not appear as a company vis-à-vis other persons or its partner or work mainly or usually for a single contractor;
(i) work in premises that are not the owner or tenant or with equipment made available to him, financed or guaranteed by the contractor.
§ 2. When it appears that more than half of the criteria referred to in paragraph 1^er are not fulfilled, the working relationship is presumed to be an independent contract.
This presumption may be overturned by all means of law, including on the basis of the general criteria set out in this Act.
§ 3. The King may, under the same procedure as that provided for in Article 335, provide for specific criteria specific to one or more sectors, one or more professions, one or more categories of professions or to one or more professional activities that he determines, and which replace or supplement the criteria referred to in paragraph 1^er.
These criteria must contain elements that relate to socio-economic dependence or legal subordination."
Art. 11. In Title XIII of the Act the title of Chapter VI is replaced by the following:
“Chapter VI. Decisions on the qualification of the working relationship by the administrative commission. "
Art. 12. The following amendments are made to section 338 of the Act:
1° paragraph 1^er is replaced by the following:
« § 1^er. The boards of the commission referred to in section 329 shall be responsible for making decisions regarding the qualification of a specified working relationship. These decisions produce their effects for a period of 3 years in the cases referred to in § 2, paragraphs 2 and 3. »;
2° in paragraph 2 paragraph 1 is replaced by the following:
"These decisions shall be made at the joint initiative of all parties to the working relationship, when the parties enter the competent board of the administrative commission within one year of the coming into force of this Act or the royal decree referred to in sections 334, 337/1 or 337/2 as long as it is applicable to the relevant working relationship.
These decisions may also be made at the initiative of a single party to the working relationship, in the event that the worker begins an independent work activity and makes the request at the time of his affiliation to a social insurance fund referred to in article 20 of Royal Decree No. 38, and this either at the time of affiliation or within one year of the beginning of the working relationship.
These decisions can finally be made at the initiative of any party to a working relationship or an envisaged working relationship whose status as an employee or an independent worker is uncertain, and which makes it a direct request to the administrative commission, either prior to the commencement of the working relationship or within one year from the beginning of the working relationship.
In this context, the rules and procedures of the mission of social insurance funds referred to in Article 20 of Royal Decree No. 38 will be arrested by the King. »;
3° in paragraph 4, paragraph 1, the words "represented in the administrative chamber" are replaced by "represented in the administrative committee";
4° in paragraph 6 the words "the competent chamber of the administrative section" are replaced by the words "the competent chamber of the administrative commission";
Paragraph 7 is replaced by the following:
Ҥ 7. Each year, the administrative commission prepares a report resuming its jurisprudence. "
Art. 13. Section 339 of the Act is replaced by the following:
"Art. 339. This title is applicable without prejudice to the sovereign power of courts and tribunals to assess the nature of a specific working relationship, taking into account the general criteria, and, where applicable, the specific criteria and/or presumption set out in Chapter V/1.
When a social security institution challenges the nature of a working relationship, it is required to consult the jurisprudence of the administrative commission referred to in Article 329. "
Art. 14. In section 340 of the Act the following amendments are made:
1° paragraph 1^er is replaced by the following:
§ 1^er. In the case of requalification of the working relationship referred to in § 6, the correction of the social security dues due shall apply for the period before the requalification since the entry into force, if any, of the royal decree referred to in article 334, 337/1 and 337/2 applicable to the relevant working relationship and in the light of the limitation period of article 42 of the law of 27 June 1969 and »;
2° In paragraph 6, the first dash, the words "or the Royal Decree establishing the list of specific criteria applicable in the sector, profession or class of profession concerned" are replaced by the words " or royal decrees provided for in Articles 334, 337/1 and 337/2 applicable to the relevant work relationship".
Art. 15. In section 343 of the aforementioned Act of 27 December 2006, as amended by the Acts of 22 December 2008, 30 December 2009 and 4 July 2011, the following amendments are made:
1° the words "with the exception of articles 329 and 330, as well as articles 334 to 339 and 341 which come into force on a date determined by the King and no later than 1^er January 2012 " are replaced by the words " except articles 329, 337/2, § 1^er in 2, 338, 339, 341 effective 1^er January 2013";
2° the article is supplemented by a paragraph written as follows:
“With respect to articles 329, 337/2, §§ 1^er in 2, 338, 339, 341, the King may set a date of entry into force prior to that referred to in paragraph 1^er. "
Art. 16. Are repealed:
Sections 330, 336 and 337 of the Programme Law (I) of 27 December 2006;
2° the Royal Decree of 14 December 2010 concerning the composition and operation of the normative section of the Commission for the Settlement of the Working Relationship;
3° the Royal Decree of 14 December 2010 concerning the composition and operation of the rooms of the administrative section of the Commission for the Regulation of the Working Relationship.
Art. 17. Section 15 produces its effects on 1^er January 2012.
Promulgation of this law, let us order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Split, August 25, 2012.
ALBERT
By the King:
The Prime Minister,
E. DI RUPO
The Minister of Social Affairs,
Ms. L. ONKELINX
Minister of Independents,
Mrs. S. LARUELLE
The Minister of Employment,
Ms. M. DE CONINCK
The Secretary of State to Combat Social and Tax Fraud, Deputy to the Prime Minister,
J. CROMBEZ
Seal of the state seal:
The Minister of Justice,
Ms. A. TURTELBOOM
____
Note
(1) Session 2011-2012.
House of Representatives
Documents. - Bill, 53-2319 - No. 1. - Report, 53-2319 - No. 2. - Text corrected by the commission, 53-2319 - No. 3. - Text adopted in plenary and transmitted to the Senate, 53-2319 - No. 4.
Full report. - 13 July 2012.
Senate
Document. - Project referred to by the Senate, 5-1714 - No. 1. - Report, 5-1714 - No. 2. - Decision not to amend, 5-1714 - No. 3.
Annales of the Senate. - 19 July 2012.