request of social partners
Prohibition in principle to the development of workers available to users
By a person or entity that is putting workers incurred in available to others who use these workers and they exert on any part of the authority normally vested in the employer. “
At the request of social partners in the National Labour Council, a second paragraph to Article 31 § 1 of the Act making provision was added by Law of 12 August 2000 laying down provisions, social, budgetary and diverse. This paragraph gives a short explanation of the concept “exercise of authority” within the meaning of that section.
The second paragraph of Article 31, § 1, states: “A member is not the exercise of authority under this section, compliance by the third party obligations to it in terms of well-being at work and instructions given by the third party under the contract that binds the employer as to working time and rest periods and for the implementation of the agreed work.
According to the preamble of the Act of August 12, 2000, adding the above does not change the basic prohibition of provision. This prohibition is maintained. Adding merely expands the concept of “exercise of authority.” Concretely this means the following.
The authority derives from the right of the employer agreed to supervise the work of the worker.
As already mentioned in the introduction, this includes the power to give orders and to monitor, even if that power is not exercised effectively and permanently.
The existence of a relationship of authority is a question of fact which depends on the discretion of the trial judge. In conducting its research, the judge will not allow himself to be influenced by a single element, but consider the facts in their entirety. The following facts are frequently used by courts to determine whether a relationship of authority exists: the giving of orders, instructions and guidelines, and compliance with work schedules of other subordinate employees of the company and the payment of a fixed compensation, the obligation to attend meetings, the obligation to provide reports on the work, the use of the infrastructure company;