Belgian Independent Contractor Guidance

Before hiring an Independent Contractor, you need to ask yourself:

1. What are your employment needs?
2. How many hours do you need (each week / each month)?
3. How long do you need the worker? Temporary or Indefinitely?
4. Will the demand for work grow as your company grows?
5. Do you need them on-site, remote, or hybrid?

Belgian Independent Contractor and Labor Law

The contractor/employee law is primarily governed by The Employment Relations Act (also known as The Act on Labour Relations).

The Act uses the four general measures:

• The parties’ intentions as expressed in the agreement:
  • the agreement must be in line with the nature of the employment relationship, meaning the agreement matches the reality.
  • the true will of the parties based on both the written agreement and the actual situation;
• The worker’s freedom to organize their own working time:
  • The relationship must not include the impossibility of freely organizing working time or the obligation to strictly follow working days, including performing a given number of hours and reporting any absences;
  • The worker must be able to
    • freely choose their work assignments and working hours;
    • have the freedom to schedule and account for holidays and vacation days;
    • have control over the use of their time;
• The worker’s freedom to organize their work:
  • whether the individual can freely choose (and refuse) assignments;
  • the imposition of rules of conduct or objectives;
  • the worker must not be required to execute strict directions regarding specific tasks
• The ability to exercise hierarchical control:
  • the organization can not impose employee-type penalties on the contractor;
  • there may not be an established means of control;
  • the nature of reporting may not be overly strict;

In deciding the nature of the relationship, the government may also use neutral criteria such as the title of the contract, registration with a social security office, how the contractor and organization are registered (including VAT), and how revenue is reported to the tax authorities.

Appendix

In a Labor Code Act in 2012, the Government additionally introduced a refutable presumption of the existence of an employment agreement if, based on the contractual relationship, more than half of the following criteria are fulfilled:

• Absence of any financial or economic risk for the worker, such as the absence of personal and substantial investment with their resources or absence of a personal and substantial part in the profits or losses of the undertaking;
• Absence of liability and decision-making power in respect of the financial resources of the organization;
• Absence of influence on the purchase policy of the organization;
• Absence of the power of the decision of the price policy, unless prices are fixed by law;
• Absence of commitment in respect of the result of the agreed work;
• Guaranteed payment of a fixed compensation without regard to the result of the undertaking or the volume of the work performed;
• Absence of possibility to hire personnel to carry out the agreed work or to be replaced;
• Not acting as an undertaking towards other individuals or mainly working for the same contractual partner;
• Working in spaces in which one is not the owner or tenant, or working with materials provided, financed, or secured by the contractual partner.