The present provisions constitute an integral part of the contract entered into between Synergie and its various companies, hereinafter known as Synergie.
1. The present general conditions have been established subject to current legislation, namely the law of 24 July 1987 concerning temporary employment, temporary agency employment and making workers available to Users, including the applicable CCTs [General Conditions of Employment] of the Conseil National du Travail and the Commission Paritaire pour le Travail Interimaire (CP 322), as well as the law of 14 July 1991 concerning commercial practices.
2. Temporary workers employed by Synergie are made available through the conditions arranged when there is a demand and under general conditions stipulated, that are an integral part of the contract entered into between the User and Synergie and that have been established in accordance with the law of 24 July 1987. Any divergence in relation to these general conditions should be agreed in writing.
3. The present general conditions – and in particular article 23 thereof –shall also apply as long as the User makes a request to Synergie and the latter suggests candidates to the User.
4. Pursuant to the CCT 38 quater of 14 July 1999, Synergie shall not treat candidates in a discriminatory manner. Consequently, the User may solely formulate job criteria that are relevant to its demand.
5. The User undertakes, at the start of the contract and throughout the term thereof, to provide Synergie immediately with all of the necessary information as well as any changes thereto, and preferably in writing.
- In other words, the User shall provide Synergie, in particular, with the following data:
- the reason for using agency temporary staff and the presence or otherwise of trade union representation;
- the pay conditions of the permanent staff, including bonuses and the various current advantages in the User’s company, as well as the conditions under which they were granted;
- the activities, workstation and any workstation file, the required occupational qualifications, the results of risk assessments, medical supervision and the arrangements for staff protection;
- potential strike or lock-out situations or other forms of temporary unemployment;
- any occurring work accident;
- the operation of DIMONA [Déclaration immédiate - Instant Declaration], any information with respect thereof having to be provided prior to the start of availability of the agency worker:
- the late arrival or absence of agency workers:
- the non-renewal of an assignment.
The User shall be solely liable for any consequences resulting the non-transmission, the late, insufficient or erroneous transmission of this information. Any corrections and/or costs caused as a result thereof shall be productive of additional invoicing to the User.
6. The User shall bear responsibility for the correct application of the grounds and deadlines for agency work. In the context of these grounds, it shall provide, in the cases laid down in law, the necessary permits and communications for making agency workers available. Where there is recourse to the use of agency staff on the grounds of “work overload”, the User may use a maximum of three agency workers for the same job vacancy. In the case of daily consecutive contracts, the User guarantees that these are justified due to the need for the flexibility specific to its company. Legal penalties that may be imposed on the temporary employment agency in the absence of justification shall rebound on the User under the same invoicing conditions as those that were in force when the staff were made available.
7. The temporary staff agency shall in no way be held liable for the consequences of the absence and/or late arrival of its agency workers.
8. The User shall not be entitled to make use of the services of Synergie in case of temporary unemployment, strike or lock-out in its company. In such cases, the User shall inform Synergie immediately in writing. The compulsory withdrawal of agency workers in such cases shall not be productive of payment of compensation by Synergie to the User.
9. During the term in which the agency workers are made available to the User, the latter shall ensure, pursuant to article 19 of the law of 24 July 1987, to apply the provisions of the law covering employment regulations and protection, that are in force at the place at which they are available. Consequently, the User is required to treat agency workers on an equal footing with its permanent staff, especially with respect to working hours, working time reduction, compensation, breaks, holidays, Sunday working, night working, well-being of the agency worker in the workplace, etc.
10. Civil liability, as laid down in article 1384 paragraph 3 of the Civil Code, is incumbent upon the User. Consequently, the User shall be solely liable for any damage caused to third parties by the agency worker. It is recommended that an “agency staff clause” be included in the User’s civil liability insurance.
Synergie shall further not be held liable for any damage caused to the User by the agency worker during and on the occasion of his/her availability to the User. Nor may Synergie be held liable for any deterioration, loss, theft or disappearance of items, money or property assigned to the temporary workers. Synergie shall also not be liable for loans or advances, in kind or in cash that may possibly be granted to the agency worker by the User. Furthermore, a claim for any costs resulting, for example, from telephone use for private purposes, the taking of meals in the company restaurant, authorised purchases, etc. must be made without this being done through Synergie.
11. Synergie shall be bound by an undertaking of resources and shall choose agency workers responsibly, on the basis of qualifications communicated to it by the User.
If a sub-contractor is used for the supply of agency workers, these workers shall be required by Synergie to pass a final examination in order to be able to guarantee compliance with the qualitative standards agreed with the User.
If the User itself performs the selection for agency workers, it shall not be entitled to invoke Synergie’s liability in this respect.
Although Synergie devotes the desired care to the selection of agency workers, a User who establishes that an agency worker does not meet the job qualifications required from hi/her shall be required to inform Synergie immediately, and in any case, during the course of the first working day, and shall terminate the activities of the said agency worker.
The User undertakes to confirm its decision to Synergie by registered letter.
12. The agency worker shall be bound to Synergie through a contract of employment and shall at all times remain an employee of Synergie, and subject to the User’s authority and supervision. Although the agency worker shall remain subject to the regulations governing the relationship between Synergie, as an employer, and the agency worker, as an employee, during the performance of the work as part of his/her assignment, he/she must comply exclusively with the instructions given by the User with whom he/she is performing the assignment.
13. Pursuant to article 10 of the law of 24 July 1987, agency workers are entitled to the same gross wages, including index-linkage and increases established through collective bargaining, plus bonuses, luncheon vouchers and other wages components as if they were employed permanently by the User.
On the basis of article 5 of the present general conditions, the User shall inform Synergie of this information about wages. The User shall be solely liable for any consequences resulting from failure to transmit, late, incomplete or erroneous transmission of this information. Any corrections and/or costs caused as a result thereof shall be productive of additional invoicing of the User.
14. An agency worker shall benefit from the same level of protection as other company employees with respect to health and safety at work. The agency worker may only perform the work stated on the workstation datasheet or, if no workstation datasheet is required, as stated in the special commercial conditions, and more particularly in the description of the workstation, the required occupational qualifications and the result of the risk assessment.
Pursuant to the Royal Decree du 19 February 1997, in the cases established, the User must complete the workstation datasheet and submit it to Synergie before the temporary worker may be made available.
When this workstation file is created, the User shall have been advised by its prevention service as well as the occupational physician.
The User shall bear ultimate liability (pursuant to article 5, 4° of the Royal Decree of 19 February 1997) for the availability of work clothing and personal protection devices, as well as the cleaning, repair and maintenance thereof under conditions of normal use, even if a different commercial agreement concerning their delivery has been entered into with Synergie.
The User may thus only assign to an agency worker the tasks for which he/she has been provided to perform. Unless there is an agreement to the contrary, the agency worker shall not perform work governed by special protection regulations, such as dirty and/or dangerous work, underground work or working at a height. Unless there is an agreement to the contrary, the agency worker shall not be assigned to work abroad. Pursuant to articles 2 and 4 of the CCT of 8 September, 1993, the User shall ensure, at the time the agency work starts his/her assignment, that new agency workers are introduced and inserted into the company and it shall ensure that agency workers are provided with everything they need to facilitate their insertion into the company.
15. In case of a work accident to an agency worker, the User shall inform Synergie immediately, after taking all of the emergency measures necessary and have provided first aid and possible transferred the patient to a doctor or care institution, and Synergie shall be provided with all of the information necessary for producing a declaration of an accident. Should there be any delay or negligence in this respect, the User may find himself held directly liable.
The User shall provide Synergie with the necessary workstation datasheets, completed and signed, before the agency worker starts work. When a Synergie agency worker is involved in a work accident, the User, after taking any emergency measures, shall warn Synergie immediately and shall supply, through a form made available to it, all of the necessary information for establishing the declaration of an accident. Pursuant to article 94 ter, § 1 of the Loi sur le Bien-être [Well-being Law] of 04/08/1996, the User’s prevention adviser shall examine any serious accident suffered by an agency worker. Pursuant to the same article § 2, the User’s prevention adviser shall contact Synergie’s prevention consultant who shall lend assistance to the investigation, and shall inform him/her of the measures examined in order to prevent similar accidents occurring in the future that involve agency workers. The User’s prevention adviser shall produce a substantiated report. The respective measures taken on the basis of this report by the User and Synergie shall be reported and signed off in the final report to be submitted by the User of the Federal Inspection Service, with 10 days from the occurrence of the accident. The User hereby declares that it is familiar with the Royal Decree of 25 April 2007 concerning the induction and support given to workers on the subject of well-being at work. In concrete terms, this means that the User shall be responsible for the induction and support given to new agency workers.
16. The User shall be solely liable for sending back the signed client (and supervision) contract covering a summary of the services to be provided, completed and signed. If these documents are not provided, the User may not claim non-signature to the detriment of Synergie. Synergie shall then invoice the User for the hours actually worked by the agency worker with, as a minimum, the working hours contractually agreed. If the agency worker is made available for longer, uninterruptedly and subsequent to the previous contract, for one or more consecutive days, including Saturday and Sunday, under the same working conditions, the abovementioned contract shall be extended by these days of availability, on condition that the User informs Synergie of the extension of availability before 5.00 p.m. by fax.
17. In signing the services report, the User shall be confirming the accuracy of the hours served and reported and the performance of the work done by the agency worker. This signature shall be provided immediately at the end of the hours worked, described in the summary of the service provision in question, so that the User does not obstruct the swift and accurate processing payment of employees by Synergie. The User may not dispute the validity of the signature of its managers or representatives.
Unless there is a written agreement to the contrary, in the case of automatic processing of the hours worked, the User shall always agreed with the hours worked data as transmitted through automation or electronically to Synergie. The User shall be solely liable in case of error in the automated despatch.
18. Invoicing shall occur on the basis of the hours worked as stated in the service provision summary or transmitted electronically by the User with, as a minimum, the hours requested by the User, except when the hours worked are fewer, due to the exclusive participation of the agency worker and as long as the obligation to provide information defined in article 5 of these terms and conditions has been fulfilled. If the summary of services provided, completed and signed by the User is not available, invoicing shall be based on the hours actually served by the agency worker with, as a minimum, the hours requested by the User. In this context, all of the free time and days granted by the User to its permanent staff, such as, for example, non-mandatory holidays, days’ leave, bridging days, etc. to which the agency worker also has a right, shall also be considered as hours served and shall be invoiced accordingly to the User.
To this initial price invoiced, this factor and/or agreed rate shall be added. In the case of an increase in direct or indirect employer contributions, this factor and/or rate shall be increased accordingly unilaterally by Synergie, as shall any other eventual factor determining the actual hourly costs. This rate shall also be increased unilaterally by Synergie in the case of an increase in the agency worker’s basic wage, as a result of wage index-linkage and agreed wage increases through collective bargaining in the User’s workplace.
Invoicing shall be performed while taking account of other components of the wages as defined in article 13 of the present conditions and other written wage agreements, including the applicable VAT.
In the case of special work (such as, for example, overtime, team work, night working, Sunday and holiday working etc.), the agency worker shall be compensated pursuant to the law and/or the CCT applied at the User’s premises. The additional amount of pay shall be invoiced to the User using the same factors as those applied to the agency worker’s basic salary or that used to calculate the rate.
In the context of DIMONA, unless there is an agreement to the contrary, a lump sum shall be paid per hour worked and stated in the invoices.
19. Any claims relating to the invoices shall be substantiated and sent to Synergie by registered letter, to reach Synergie within eight calendar days from the date of invoice. Once this date has passed, the claim will not be admissible.
20. Synergie’s invoices shall be payable in cash, net and undiscounted, unless there is a written agreement to the contrary. If payment is made other than in cash, such as by bank transfer, direct debit or cheque, any costs incurred shall be paid by the User. If payment is not made upon receipt of the invoice, the amount invoiced shall be lawfully increased without a prior official notification by late payment interest corresponding to the average annual rate of the EURIBOR (European Interbank Offered Rate) for the previous year, plus 3%. Furthermore, in a case of non-payment of the invoice one month after the due date, a single amount of compensation amounting to 15% of the amounts due, with a minimum of 125 euros, shall be due after a written official notification has been made. Synergie’s bills of exchange shall involve no exemption and shall not be productive of any novation.
Any payment method agreed in writing shall lawfully end as soon as Synergie has to take steps for recovery, by legal means, of unpaid invoices for which the User is liable. Where there is a written official notification, disputed bills of exchange or cheques that are not honoured, summonses from the ONSS [Social Security Office] or other signs of the User’s doubtful solvency, the methods of payment granted by Synergie shall lawfully expire. In such cases, all invoices (including invoices not yet due) shall also legally fall due.
An agency worker shall not be entitled to be paid the invoices.
In the case of non-payment of an invoice or invoices by the due date, Synergie shall send, via any appropriate means (letter, e-mail, etc.), a warning letter to the defaulting client. These reminders shall give rise to the addition of lump sum administrative fees.
21. Pursuant to article 17 of the law of 24 July 1987, the User is requested, within seven working days from the start of the time when the worker is made available, to send a copy of the contract to Synergie.
22. If the User does not comply with its legal obligations or the general conditions, as well as in a case of non-payment, Synergie shall have the right, without being required to pay any damages with interest, to cancel the current contracts and immediately recall its agency workers.
23. The following rule shall apply in the case of premature hiring. If, within a minimum period of four months of availability, without the intervention of the temporary employment agency, the User enters into a working relationship with the agency worker for an identical or other job, it shall pay the temporary employment agency, in the form of compensation for the damage suffered, an amount equal to 20% of the gross salary of the agency worker concerned.
Synergie reserves the right to demand additional compensation if it can provide that the damage caused exceeds the abovementioned compensation.
The User shall also be liable for this compensation if the agency worker, after he/she has ended his/her availability, enters into a working relationship with The User, as long as four months shall not have elapsed between the first day of temporary work and the first day of the working relationship with the agency worker.
The User undertake to inform the temporary employment agency in writing and in advance of its intentions of entering into a working relationship with the agency worker.
The following is what is meant by “entering into a working relationship with the agency worker”:
- the User entering into a contract of employment with the agency worker
- the making available of the agency worker to the User through a third party (especially another temporary employment agency)
- entering into a sub-contracting contract with the agency worker or with a third party that has taken the agency worker into service for the purpose
- entering into a working relationship between the agency worker and a third party, where the User and this third party belong to the same group, one being the parent company or subsidiary of the other or linked or associated with each other, pursuant to Title II, Chapter II of the Companies Code.
Agency worker shall be taken to mean:
- the agency worker chosen by the temporary employment agency, who has been made available to the User under a temporary employment contract
- the candidate agency worker offered by the temporary employment agency by the user
- The agency worker’s annual gross wages shall be taken to mean:
- if the agency worker has already worked, the final gross wages in force multiplied by the average number of hours worked per week in force in the user’s industry multiplied by 4.33 x 13.92
- if the agency worker has not already worked : the gross wages in force at the User’s premises for the job in question (with as a minimum the price ranges of the User’s Commission paritaire [Price Commission]) multiplied by the average number of working hours per week in the User’s industry multiplied by 4.33 x 13.92.
24. The following rule shall apply in the case of unilateral breach of contract, without prior commitment.
On the basis of article 1226 ff. of the Civil Code, the User unilaterally and prematurely terminates the contract, it must pay lump sum compensation to Synergie equal to the sum of the invoices that Synergie would have produced had the contract been performed in its entirety, with a minimum of 125 euros per calendar day. This shall also apply should the contract between the User and Synergie become null and void due to failure by the User to comply with the legal constraints incumbent thereon or following incorrect information provided by the User when the contract in question was entered into.
Synergie reserves the right to claim increased damages with interest on condition that it provides proof of the damage caused.
25. The present general conditions may not include any deletions and shall prevail over all others. Any exemption from the present general conditions shall be possible solely on condition that it has been agreed in writing.
26. In the case of dispute and/or non-payment, only the courts of the district of Synergie S.A.’s registered office shall have jurisdiction.