A working relationship may either be as an employee or a self-employed freelancer. The basic difference between these two positions lies in the presence or not of authority between the parties to the contract.
The Labour Relations Act sets the goal of establishing a framework that qualifies a working relationship by establishing general criteria applicable to every working relationship, and specific criteria applicable to one or more sectors, professions, categories of profession, or professional activities.
This law also had the goal of establishing an administrative commission on working relationships (the Commission) with the task of making decisions on the qualifications for working relationships (a type of “social ruling”). The royal decrees needed to establish the Commission in practice had in any case never been issued.
Within the context of the fight against social fraud, the Di Rupo government changed the law on labour relationships, in particular regarding the Commission. It was expected that the implementing regulations for the Commission would finally be adopted at the same time. This has now been done, since two royal decrees of 11 February 2013 concerning the functioning, composition, and nomination of the members of the Commission were published in the Belgian Gazette on 21 February 2013.
Composition
The Commission is established within the Belgian Public Services (SPF) for social security. Each chamber of the Commission is presided over by a professional magistrate designated by the Minister of justice and is composed of:
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at least two members appointed upon the proposal of the minister of small and medium-sized enterprises, from the staff of the general directorate of the self-employed of the SPF social security or from the staff of the National Institute for the Social Security of the Self-employed (INASTI);
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at least two members appointed upon the proposal of the ministers of Social Affairs and Employment, from SPF Social Security, SPF Employment, or the National Office of Social Security (ONSS).
Practical results: the social ruling
Now it should be possible to petition the Commission in order to get a decision on the qualification for an employment relationship. Consequently, it could be useful to examine the opportunity to petition the Commission to rule on the nature of a (future) employment relationship.
The Commission may be petitioned according to the following conditions:
Who petitions the Commission?
Joint request of the parties to the working relationship
When: In all cases, from 1st January 2013 to 31 December 2013 Or: During the year in which a legislative amendment comes into force (e.g. during the year the administrative regulation setting new specific criteria comes into force).
A social insurance fund
When: When the worker makes a request to the social insurance fund during the time of his membership or during the year the working relationship begins.
One party or all the parties
When: Either before the beginning of the working relationship in the working relationship or during a period of one year after the beginning of the working relationship.
Hearings and decisions
The Commission’s hearings are not public. The chambers shall rule on the basis of documents after having heard, depending on the case, the party or parties in the working relationship. The parties may be represented by a lawyer or any other person of their choice possessing a written authorisation.
Decisions shall be issued within three months of submission of the petition; the deadline may be extended when supplementary documents are requested.
The Commission’s decisions are binding on the institutions represented within the Commission and also the social insurance fund. If the working conditions are modified, the party that received a decision by the Commission may get a new decision. The decisions of the Commission may be subject to appeal before the labour tribunal.
Finally, the Labour Relations Act seeks to alleviate the consequences of a re-qualification when this results from a decision by the Commission (e.g. the rectification applies only to social security contributions themselves, excluding extra pay and interest usually owed).
Coming into force
The implementing royal decrees entered into force on 3 March 2013. Thus, the Commission should be operational very soon and its first decisions are expected this year.