Be Aware – May 2024

New decree simplifies the procedure for creating a common internal service for prevention and protection at work

Every employer in Belgium must have an internal service for prevention and protection at work.

A new decree has substantially simplified the procedure for companies setting up “small” common internal services.

The size and the minimum requirements of the internal service depend on the nature of the company’s activities and the number of workers. There are four categories. Category D consists of employers with less than 20 workers where the employer can take up the role of internal service for prevention at work. Category A includes employers with at least 1,000 workers, but this threshold can be reduced to 50 workers for the most dangerous activities (for instance the petrol industry).

The internal service for prevention and protection at work is set up at the level of the technical operating unit, the same level where the works council and the committee for prevention and protection at work have to be set up. Companies belonging to the same group and based at the same site can in most cases create one single internal prevention and protection at work, as they constitute one technical operating unit. In that case, the prevention advisor can take up their role for all companies involved, irrespective of the company that’s the employer of the prevention advisor involved.

But there are cases where it would be efficient if companies that aren’t part of the same technical operating unit have a common internal service. Shops in a shopping centre are typically small companies, all facing the same or at least similar issues in relation to health and safety. While it’s difficult for each of them to have a specialised prevention advisor in service, it’s far easier at the level of the group of employers. It can also be far more efficient if one prevention advisor performs a task for all employers involved, rather than each employer involved appointing a separate prevention advisor to perform the same task.

The Code of Wellbeing at Work included a chapter on common internal services for prevention and protection at work, but there were only a few common services. Setting up a common internal service required a formal Decree by the Minister for Work, and the procedure on average took around six months. The same procedure had to be followed if there was any change in the employers affiliated to a common internal service.

A Royal Decree of 26 March 2024, published in the Official Journal of 2 May 2024 and entering into force on 1 July 2024, substantially simplified this procedure for “small” common internal services. These are defined as the common internal services meeting all of the following three criteria :

• At most ten employers are affiliated.
• These employers have at most 2,000 workers.
• The common internal service does not have a department for medical monitoring.

The main difference is that for these small common internal services, is that it suffices to show the social inspection that all statutory conditions have been met to create one. A formal Decree by the Minister for Work is no longer needed.

These statutory conditions are rather straightforward:

• The common internal service fulfils this role for all workers of the participating employers.
• There is a “legal, economic, geographic or technical link” between the participating employers.
• A common internal service has an added value for the workers, compared to the scenario of each employer having a separate internal service, notably because there are more prevention advisors, they hold a higher degree, or more specialisms are present within the common service.
• There is a written agreement between the employer on the functioning of the common service.

Also if there’s a change in the employers participating in a small common internal service, it suffices from 1 July 2024 to notify this to the social inspection.

For the “large” common internal services, the only significant amendment in the legislation is that if there would be a change in the employers participating to the common internal service, there’s no longer the need to obtain a new Decree from the Minister of Work.

There is a transitionary provision for the existing common internal services. They should follow the procedure for the setting up under the new legislation by 30 June 2026.

 

A managing director can also be an employee

On the basis of article 3 of the Royal Decree nr. 38 of 27 July 1967, holding the regulation of the social status of the self-employed, directors of a company subject to the Belgian company tax are presumed to be self-employed. But this presumption is reversible. A Supreme Court judgement of 11 March 2024 shows how a managing director can be an employee.

The case concerned a company with a fashion store in Antwerp. It was an Italian group with only one store in Belgium. The person involved was appointed as remunerated managing director. But all important decisions were taken by the other director of the company, who was a representative of the Italian parent company.

The managing director was only entitled to sign contracts with a value of maximum EUR10,000, and even often asked for approval before signing contracts below this threshold. The managing director’s working hours were set at the level of the group, and he had to ask the other director for authorisation to take holiday leave.

During the term of the directorship, there was no debate about the director’s self-employed status. But a couple of months after the employment was terminated, the person involved alleged that in reality they’d been an employee and claimed benefits inherent to employment status (eg arrears of holiday pay, arrears of the 13th month payment, an indemnity in lieu of notice, the benefits under the pension scheme the company had for its employees). The National Office for Social Security also took the view the director was an employee and claimed the payment of the social security contributions due under the regime for employees.

The Supreme Court started its reasoning by stating that an employment contract requires three elements:

• an agreement on the work to be performed
• an agreement on the remuneration
• the employer’s authority

Article 331 of the Programme Act (I) of 27 December 2006 stipulates that the parties are in principle free to decide whether they qualify their contractual relationship as a service agreement with a self-employed person or as an employment contract. This article adds that the qualification chosen by the parties can be disregarded if the way the parties implement their contract is incompatible with the legal qualification chosen in the contract.

The article 333 of the Programme Act (I) stipulates that the freedom to organise the working time, the freedom to organise the work (ie determine the working method) and the possibility of a hierarchical monitoring are the general criteria for distinguishing an employee from a self-employed person.

In this case, the parties had signed an agreement stating that the person would be a self-employed managing director. But the instructions given in the day-to-day realities clearly exceeded the general directions inherent to working as a self-employed person. The person involved was not free to choose the working hours, had to apply for authorisation to take holiday leave and had also no genuine decision-making power for determining how the store was managed. So the Supreme Court concluded the person involved had to be considered as an employee.

The Supreme Court did annul the judgement of the Employment Appeal Tribunal regarding the claim by the National Office for Social Security. The Employment Appeal Tribunal had ordered both the Belgian company and the Italian parent company to pay the social security contributions due for the whole period the person involved worked for the company (from 2004 to 2014) to the National Office.

The Supreme Court concluded that the Italian parent company was not the employer (the other director of the Belgian company exercised the employer’s authority on behalf of the Belgian company), so it couldn’t be ordered to pay the social security contributions.

Separately, the Supreme Court found the Employment Appeal Tribunal wrongly considered the normal time bar of three years was not applicable. This time bar was in the meantime amended, so the National Office for Social Security can now claim during ten years in case of fraud.