An Act To Amend Title Xiii Of The Programme Law (I) Of 27 December 2006, With Regard To The Nature Of Labour Relations

Original Language Title: Loi modifiant le Titre XIII de la loi-programme (I) du 27 décembre 2006, en ce qui concerne la nature des relations de travail

Read the untranslated law here: http://www.ejustice.just.fgov.be/cgi/article_body.pl?numac=2012021115&caller=list&article_lang=F&row_id=1400&numero=1487&pub_date=2012-09-11&dt=LOI&language=fr&fr=f&choix1=ET&choix2=ET&fromtab=+moftxt&trier=publication&sql=dt+=+'LOI'&tri=pd+AS+RANK+

Posted the: 2012-09-11 Numac: 2012021115 SERVICE PUBLIC FEDERAL CHANCELLERY of the Prime Minister 25 August 2012. -An act to amend Title XIII of the programme law (I) of 27 December 2006, with regard to the nature of ALBERT II, King of the Belgians, labour relations to all, present and to come, hi.
The Chambers have adopted and we endorse the following: Article 1. This Act regulates a matter covered by article 78 of the Constitution.
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2. in Title XIII of the programme law (I) of 27 December 2006 the title of chapter II is replaced by the following: "chapter II the administrative Commission's regulation of the employment relationship.
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S. 3. article 329 of the Act is replaced by the following: «art.» 329. § 1. An administrative panel of the employment relationship is established with several rooms.
§ 2. The rooms of the administrative commission referred to in paragraph first are each composed of an equal number of members appointed on the proposal of the Minister who has the Middle Classes in charge among its administration or staff of the national Institute of insurance for self-employed, on the one hand, and of members appointed on the proposal of the Ministers who have the Social Affairs and employment responsibilities among the members of their administrations or the national Office staff of Social security on the other.
Each House is presided over by a professional judge.
§ 3.Aucun Member rooms may not exercise the function of an employee who is under the authority of the Ministers in charge of their affairs, SMEs and employment, and which is responsible for monitoring the application of legislation on social security and labour law.
§ 4. The members of the boards are appointed by the King.
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5. The King determines the composition and the functioning of the administrative commission.
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6. The administrative commission may decide to hear experts from the sectors concerned or the relevant professions. ».
S. 4. in article 332 of the Act 1 paragraph is replaced by the following: "when the execution of the employment relationship reveals the meeting of sufficient evidence inconsistent with the rating given by the parties to the employment relationship, valued in accordance with the provisions of this Act and its orders of execution, or when the qualification given by the parties to the employment relationship does not correspond to the nature of the relationship of. work presumed, in accordance with chapter V/1 and that this presumption is not rebutted, there will be a reclassification of the employment relationship and application of the corresponding social security scheme, without prejudice to the following provisions: 1) article 2, § 1, 1 ° and 3 °, of the law of 27 June 1969, article 2, § 1, 1 ° and 3 °, of the law of 29 June 1981 and article 3 , §§ 1 and 2, of the royal decree No. 38, as well as any arrangements made on the basis of these provisions;
(2) in General, any legal or regulatory provisions imposing or assuming irrevocably the exercise of a profession or an activity as a self-employed person or worker employed within the meaning of this Act. ».
S. 5. in Title XIII, chapter V, of the same Act, the division into sections is repealed.
S. 6. in article 334 of the Act, paragraph 1 is replaced by the following: "§ 1.»
The King can establish a list of specific criteria for one or more sectors, to one or more professions, to one or more categories of occupations or to one or more professional activities as it may determine. Complete this list the criteria referred to in article 333. ».
S. 7. article 335 of the Act is replaced by the following: «art.» ((335 the King cannot exercise jurisdiction that it has been recognized by section 334 after notice: 1) the Executive Committee of the federal Office of Service orientation information and social research, as provided for in article 6 of the social Criminal Code, 2) commissions or joint subcommittees competent. This notice is given by the national labour Council, where several joint commissions are competent. Absence of a Committee or Sub-Committee joint competent or effective, this notice is given by the national Council of labour, 3) of the Board of Governors the self-employed and SMEs, making his opinion that after consulting the sectors and occupations concerned, and if there is, the order or the Professional Institute established by law for the profession concerned.
These three bodies give their notice within a period of four months after the request made by the Minister who has employment in its attributions, the Minister who has Affairs in charge or the Minister that the Middle Classes.
If, within the time limit, no consistent and unanimous opinion is delivered, the King can establish specific criteria for the relevant sectors, the professions, the categories of professions or professional activities concerned by a royal decree deliberated in the Council of Ministers. ».
Ministers referred to in paragraph (2) may apply to the bodies referred to in paragraph 1stmini give their opinions either on their own initiative or at the request of committees or competent joint subcommittees, the national Council of labour, self-employed and higher Council of SMEs or organisations that are represented.
If ministers simultaneously several applications to seek the opinion of the bodies mentioned in paragraph 1, they shall establish a timetable for the introduction of requests for opinions in question.
S. 8. in Title XIII of the Act, it is inserted a chapter V/1, as follows: ' chapter V/1. Presumption regarding the nature of the employment relationship.
S. 9. in chapter V/1 inserted by article 8, it is inserted a section 337/1 as follows: «art.» 337/1. § 1.
This chapter is applicable to labour relations which lie within the following framework: 1 ° the execution of activities listed in article 20, paragraph 2, of the royal decree No. 1 of 29 December 1992, on the measures to ensure payment of the tax on the value added;
2 ° the pursuit of the activity to perform on behalf of third parties, all kinds of monitoring and / or child care;
3 ° the carriage of things and or people on behalf of third parties, with the exception of ambulance services and the transportation of persons with disabilities;
4 ° the activities that emerge from the scope of the Joint Appeals Board for cleaning, which are not already referred to in 1 °.
§ 2. The list provided for in paragraph 1 may be extended by the King after seeking the advice: 1) the Executive Committee of the federal Office of Service orientation information and social research, as provided for in article 6 of the social Criminal Code, 2) commissions or joint subcommittees competent. This notice is given by the national labour Council, where several joint commissions are competent. Absence of a Committee or Sub-Committee joint competent or effective, this notice is given by the national Council of labour, 3) of the Board of Governors the self-employed and SMEs, making his opinion that after consulting the sectors and occupations concerned, and if there is, the order or the Professional Institute established by law for the profession concerned.
These three bodies must give their opinions within a period of four months after the request made by the Minister responsible for employment, the Minister of Social Affairs or the competent Minister for the Middle Classes.
If, within the time limit, no consistent and unanimous opinion was delivered, the King may resume within the scope of this chapter the sectors, the professions, the categories of professions or professional activities concerned by order deliberated in Council of Ministers.
Ministers referred to in paragraph (2) may apply to the bodies referred to in paragraph 1 give their opinions either on their own initiative or at the request of the committees or competent joint subcommittees, national Council work, the Board of Governors, independents and the SMEs, or organizations that are represented.
If ministers simultaneously several applications to seek the opinion of the bodies mentioned in paragraph 1, they shall establish a timetable for the introduction of requests for opinions in question.
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3. This chapter is not applicable to family labour relations.
Labour relations family, means: has) the working relationships between relatives and allies up to the third degree inclusive and between cohabiting within the meaning of the Act of 23 November 1998 instituting legal cohabitation;
(b)) the working relationship between a company and a natural person, being a parent or an ally to the third degree inclusive, or a cohabiting legal or that that alone is of those who together hold more than 50 percent of shares of the company in question. » Art. 10. in chapter V/1 inserted by article 8, it is inserted a section 337/2 as follows: «art.» 337/2. § 1. Labour relations referred to in article 337/1 are presumed until the contrary is proved, be executed in links from a contract of employment, when the employment relationship analysis it appears that more than half of the following criteria are met:

(a) failure, on the part of the performer of the work, a any risk financial or economic, as this is the case:-absence of personal and substantial investment in the company with equity capital, or, - absence of personal and substantial participation in the gains and losses of the company.
(b) failure on the part of the performer of the work, responsibility and power of decision concerning the financial resources of the company on the part of the performer of the work.
(c) failure, on the part of the performer of the work, of any power of decision concerning the purchase of the business policy;
(d) failure, on the part of the performer of the work's power of decision regarding policy of prices of the undertaking, unless prices are legally fixed;
(e) failure of an obligation of results for labour agreed;
(f) the guarantee of payment of compensation fixed regardless of the results of the company or the volume of services provided in the head of the performer of the work;
(g) not be yourself the employer of staff recruited personally and freely or do not have the possibility of engaging staff or to replace for the execution of the agreed work.
(h) not appear as a company towards other people or the other party or work primarily or customarily for a single counterparty;
i) i) work in areas where it is not the owner or the lessee or with updated equipment at its disposal, financed or guaranteed by the counterparty.
§ 2. When it appears that more than half of the criteria referred to in paragraph 1 are not met, the employment relationship is presumed so rebuttable be an independent contract.
This presumption may be rebutted by any means of law and on the basis of the general criteria set out in this Act.
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3. The King may, by the same procedure as laid down in article 335, provide specific criteria specific to one or several sectors, one or more professions, one or more categories of professions or to one or more professional activities that it determines, and that replace or supplement the criteria referred to in paragraph 1.
These criteria must contain elements that have a relationship with a socio-economic dependency or a legal subordination.
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11. in Title XIII of the Act the title of Chapter VI is replaced by the following: ' chapter VI '. Decisions relating to the characterization of the relationship of work by the administrative commission.
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S. 12A section 338 of the Act the following changes are made: 1 ° 1st paragraph is replaced by the following: "§ 1.»
The commission referred to in article 329 Chambers as a task of making decisions related to the qualification of a committed working relationship. These decisions have effect for a period of 3 years in the cases referred to in § 2, paragraphs 2 and 3. »;
2 ° in paragraph 2, the first paragraph is replaced by the following: "these decisions are made at the joint initiative of all the parties to the employment relationship, when the parties seize the competent Chamber of the administrative Committee within a period of one year from the entry into force of this Act or of the royal decree referred to in articles 334 337/1 or 337/2 provided that it is applicable to the employment relationship concerned.
These decisions can also be made on the initiative of a single party to the employment relationship, where it begins a self-employed professional activity and upon request during its affiliation with a social insurance fund referred to in article 20 of the royal decree No. 38, and this is at the time of affiliation within a period of one year from the beginning of the employment relationship.
These decisions can be made on the initiative of any party to an employment relationship or an employment relationship envisaged whose status as employee or independent worker is uncertain, and in fact the application directly to the administrative Committee either previously at the beginning of the employment relationship or within a period of one year from the beginning of the employment relationship.
In this context, the rules and modalities of the mission of the social insurance funds referred to in article 20 of the order royal No. 38 will be laid down by the King. »;
3 ° in paragraph 4, first subparagraph, the words "represented on the administrative board" are replaced by "represented in the administrative Committee";
4 ° in paragraph 6 "the competent Chamber of the administrative section" shall be replaced by the words "the competent Chamber of the administrative commission";
5 ° paragraph 7 is replaced by the following: "§ § 7 7» Each year, the administrative commission shall establish a report embodying its jurisprudence. ».
S. 13. article 339 of the Act is replaced by the following: «art.» 339. this title shall apply without prejudice to the sovereign power of the courts to assess the nature of a given working relationship, in light of the general criteria, and, where appropriate specific criteria and/or the presumption laid down in chapter V/1.
When a social security institution disputes the nature of a working relationship, it must first consult the case law of the administrative commission referred to in article 329. ».
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14. in article 340 of the same Act the following changes are made: 1 ° 1st paragraph is replaced by the following: § 1. The assumptions of requalification of the relationship of work referred to in § 6, rectification of due social security contributions will apply for the period prior to the reclassification since the entry into force, if any, of the royal decree referred to in article 334, 337/1 and 337/2 applicable to the concerned working relationship and taking into account the limitation period of article 42 of the law of 27 June 1969 and article 16 of the royal decree No. 38.';
2 ° in operative paragraph 6, first indent, the words "or the royal decree establishing the list of specific criteria applicable in the sector, profession or category of profession concerned" shall be replaced by the words "or the Royal Decrees provided for in sections 334, 337/1 and 337/2 applicable to the concerned working relationship".
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15. in article 343 of the Act of 27 December 2006, as amended by the laws of the December 22, 2008, December 30, 2009, and July 4, 2011, the following changes 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 January 1, 2012" are replaced by the words "with the exception of articles 329" 337/2, § 1 2, 338, 339, 341, which come into force on 1st January 2013 ";
2 ° article is supplemented by a paragraph worded as follows: "with respect to articles 329, 337/2, §§ 1 2, 338, 339, 341, the King may set a date of entry into force earlier than referred to in paragraph 1.".
S. 16 shall be repealed: 1 ° articles 330, 336 and 337 of the programme law (I) of 27 December 2006;
2 ° the royal decree of December 14, 2010, concerning the composition and functioning of the normative section of the Commission's regulation of the employment relationship;
3 ° the royal decree of 14 December 2010 on the composition and the functioning of the boards of the administrative section of the Commission's regulation of the employment relationship.
S. 17. article 15 is effective January 1, 2012.
Promulgate this Act, order that it self under the seal of the State and published by le Moniteur.
Given in Split, on August 25, 2012.
ALBERT by the King: the Deputy Prime Minister, E. DI RUPO the Minister of Social Affairs, Ms. L. ONKELINX the Minister of independent, Ms. S. LARUELLE Minister for employment, Ms. M. DE CONINCK the Secretary of State for the fight against social and fiscal fraud, to the Prime Minister, J. CROMBEZ sealed with the seal of the State: 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 meeting and transmitted to the Senate, 53-2319 - No. 4.
Compte rendu intégral. -13 July 2012.
Senate Document.
-Project mentioned by the Senate, 5-1714 - No. 1. -Report 5-1714 - No. 2. -Decision not to amend, 5-1714 - No. 3.
Annals of the Senate. -19 July 2012.