New Staffing Models vs. Belgium’s Restrictions: Time for Pragmatism

1. Introduction

The labour market is no longer the same as it was a few decades ago. Factors such as digitization, globalization, technological advances, and remote working have radically changed the way work is organized. Flexible forms of work and the move away from the traditional two-party employment relationship are increasingly common.

Flexible forms of employment with non-traditional employment relationships have grown proportionately faster than traditional employment. In 2024, almost 10% of the Belgian working population had employment characterized as temporary. 

Flexibility manifests itself in different ways, ranging from changes in terms of working conditions (e.g., part-time work, teleworking, thematic leave, flexible working hours, etc.) to non-traditional employment relationships (e.g., temporary work, flexi-jobs, platform work, project sourcing, freelance work, etc.).

These flexible models often encounter the limits of a strict legal framework designed to promote sustainable employment. This article examines the non-traditional employment relationships of project sourcing and Employer of Record models and how these flexible staffing models were able to develop despite Belgium’s rigid legal framework. We discuss their characteristics, the origins and purpose of the legal rules on posting, the distinction between these models and temporary agency work, and whether the current legal framework remains appropriate.

2. Project Sourcing and Employers of Record: New Workforce Management Solutions on the Rise

2.1. The Context for the Emergence of These New Solutions

For this article, “flexible staffing” refers to employment models using external workers, including temporary employment and project sourcing. Project sourcing covers flexible staffing that is not temporary agency work, mainly because the transfer of employer authority to the client/user is limited, as regulated by the Act of 24 July 1987 on temporary work, temporary agency work, and the posting of workers (the “Temporary Employment Act”).

“Project sourcing” typically involves supplying workers, although some argue it should be defined by the provision of a genuine service, not just labour. In practice, the term is used for both actual project fulfilment and the supply of labour without a clearly defined, “outsourceable” project.

“Temporary agency work” focuses on supplying workers, not on delivering a specific project or service. “Payrolling”, by contrast, involves the client bringing in the employee and outsourcing personnel and payroll management to the agency.

Companies use flexible staffing for various reasons, including labour shortages, the need for temporary work, and for administrative relief by outsourcing personnel management. For many, especially start-ups and international companies, flexible staffing ensures compliance with labour and social security laws when they lack in-house expertise. Project staffing can address these needs, but temporary agency work is limited by the permitted grounds and maximum durations for such work.

In this context, Employers of Record (EORs) have emerged. An EOR formally employs workers and provides their services to clients, handling all legal and administrative employer obligations—including contracts, payroll, social security, insurance, and compliance with labour law.

Belgium’s complex social and tax legislation makes EORs attractive for international companies and start-ups without a local entity. EORs, as repeat players, can efficiently fulfil legal obligations and formalities, especially for clients entering the Belgian market for the first time.

The rise of EORs has, in part, been driven by increasing legal complexity and remote work, which allows companies to hire talent across borders. Finding suitable workers does not stop at any national border. And yet, employment law does (despite legislation and case law at the European level). EORs also offer compliance tools and administrative relief in a world where global recruitment is common and legal requirements are ever-growing.

EOR clients are often international companies that want to engage workers in Belgium without setting up a local entity. Temporary agency work is therefore unsuitable due to its restrictive use cases and limited duration, and using freelancers may not be preferred.

EORs thus offer a solution similar to project sourcers, but their clients are mainly seeking administrative relief and compliance, as opposed to being driven by the need for project-based support or due to the scarcity of staffing.

2.2. Why Don’t EORs Organise as Temporary Employment Agencies?

It is often argued that EORs should be treated as temporary employment agencies and seek recognition as such, which is seen as a quality label to prevent abuses like “gangmastering”. “Gangmasters” refers to entities that posted workers to clients below market rates and without adequate employment protection.

However, EORs’ clients are not seeking to avoid Belgian labour law or social security; on the contrary, EOR workers in Belgium are subject to both. This distinguishes EORs from some project sourcers who may seek to reduce labour costs by hiring from abroad. EOR clients are not usually driven by cost savings on labour, but instead are looking for compliance and administrative relief.

Moreover, contrary to popular belief, EORs do not want to avoid recognition as temporary employment agencies out of a desire to circumvent regulation. Rather, the current legal framework for temporary agency work is too restrictive for their clients’ needs, as it limits the grounds and duration for which temporary workers can be assigned.

As of July 2025, the Federal Public Service Employment, Labour and Social Dialogue confirmed that temporary employment agencies are prohibited from offering open-ended employment contracts to temporary workers, even if they do not use the mechanisms of Article 8ter of the Temporary Employment Act (which has not yet entered into force).
While Article 8ter theoretically allows for open-ended contracts, it remains largely ineffective, as it requires a collective bargaining agreement that has not yet been adopted. In practice, temporary agency workers cannot be offered the employment security that EORs and project sourcers can provide.

2.3. Legal Consequences: Temporary Employment vs. Project Sourcing

The key distinction between permitted project sourcing and prohibited posting of workers is the degree of transfer of employer authority from the legal employer to the client/user. The table below summarizes the main differences:

The legal framework draws a strict line between temporary agency work and project sourcing, based on the degree of transfer of employer authority. If there is a full transfer, only temporary agency work is permitted. This is a disadvantage for project sourcing, as it limits the client’s ability to fully integrate the worker into their organization.

For employees, the degree of transfer of employer authority is also crucial. Project sourcing allows workers to build seniority with the project sourcer through serial assignments, often under open-ended contracts, which is not yet the case with temporary agency work.

3. From Gangmasters to Instruction Clauses: The Evolution of the Prohibition on Posting

The need for flexibility and new staffing models has clashed with a strict legal framework. The posting of workers is generally prohibited under the Temporary Employment Act.

3.1. Development of the Prohibition and the Rise of Temporary Agency Work

Historically, the ban on coalitions in the 19th century prevented workers from organising, leading to the rise of intermediaries in recruitment. These intermediaries were seen as exploitative, and their practices were opposed by both society and the International Labour Organization, which declared that “labour is not a commodity”.

Temporary employment took off in Belgium in the 1950s, initially structured under self-employed statuses. A legislative reform ensured that as of 1 January 1970 all temporary workers and temporary employment agencies were subject to social security. Over time, temporary agencies accepted the existence of an employment relationship with their workers, especially as the law and case law evolved.

The courts eventually recognized that temporary workers could be in an employment relationship with the agency, even if they worked under the client’s direction. The Court of Cassation confirmed that the agency’s authority could be indirect, and that the possibility of exercising authority was sufficient to establish an employment relationship.

3.2. The Law of 28 June 1976

The Act of 28 June 1976 was the first law to regulate temporary work, temporary agency work, and the posting of workers. It aimed to address the status of temporary workers and prevent abuses by “gangmasters” who posted workers to clients below market rates and without adequate employment protection.

The law prohibited posting except by recognised temporary employment agencies and declared contracts in violation of this rule null and void.

3.3. The Law of 24 July 1987

The 1987 Act built on the 1976 law, maintaining the prohibition on posting and further regulating temporary agency work. The law continued to target abuses and clarified the distinction between posting and subcontracting, focusing on whether there was a transfer of authority to the client.

3.4. The Law of 12 August 2000

In response to criticism from businesses, the 2000 amendment clarified that certain instructions from the client—such as those related to health and safety, working hours, and the performance of agreed work—do not constitute a transfer of employer authority. This allowed for more flexibility in subcontracting.

However, this change made it harder to prove prohibited posting, and violations became rare unless there were flagrant abuses.

3.5. The Current Legal Framework: Review and Reform in 2012

By 2012, concerns about social fraud and the erosion of the prohibition on posting led to a review. The law was clarified to require that any instruction from the client to the worker must be detailed in a written agreement (an “instruction clause”), and must not undermine the employer’s authority. Any deviation from this is considered a prohibited posting.

4. When Is a Service Provider a Project Sourcer and When Is It a Temporary Employment Agency?

4.1. The (Un)clear Boundary of Employer Authority Transfer

Whether an EOR or similar provider is a temporary employment agency or a project sourcer depends on the extent to which employer authority is transferred to the client. For temporary agencies, the transfer is almost unlimited; for project sourcers, it must not erode the legal employer’s authority.

The Temporary Employment Act does not define “employer authority,” making the distinction difficult in practice. Even the slightest instruction from the client can be considered a transfer of authority, triggering the prohibition on posting.

4.2. The Prohibition on Posting and EOR Activities

4.2.1. Health and Welfare Instructions

Instructions from the client related to health and welfare at work are expressly permitted and do not count as a transfer of employer authority.

4.2.2. Instruction Clauses

For instructions outside health and welfare, the law allows them only if they are detailed in a written instruction clause that does not undermine the employer’s authority and is followed in practice.

Legal doctrine and case law suggest that only the “organic” employer powers—such as recruitment, dismissal, wage determination, evaluation, discipline, and leave—must remain with the employer. Instructions on deadlines, quality, technical requirements, and general working arrangements are generally permitted.

However, the boundary is not always clear, and each situation requires a factual analysis. Some case law interprets employer authority broadly, while others take a narrower view. 

If the client can influence the termination of the worker’s assignment, this may be seen as an erosion of employer authority, but case law allows for “conditions subsequent” in employment contracts (such as automatic termination upon the loss of a client contract), provided termination is not solely at the will of one party.

It is noteworthy in all this that the distinguishing criterion in the Temporary Employment Act is not entirely in line with the case law on false self-employment. There, many instructions are rarely regarded as an expression of employer authority. As a rule, a self-employed person is only considered an employee if the exercise of the employment relationship brings forward sufficient elements that are really incompatible with a self-employed status. 

Such legal inconsistencies make it no easy task to be able to see a clear line in what "any part of employer authority" or a "(too) far-reaching transfer of employer authority" within the meaning of the Temporary Employment Act does or does not mean exactly. 

4.2.3. Exceptions to the Prohibition and the Relationship with EORs

The law provides only limited exceptions to the prohibition on posting, such as temporary agency work, permitted posting with prior authorisation, and certain specific categories of workers or employers. These exceptions are generally not available to EORs.

5. Conclusion: Re-evaluating the Legal Framework?

It is worth critically re-examining the current legal framework in light of its original objectives: protecting workers under social security and labour law, preventing abuses, and ensuring the solvency of service providers.

Some argue that EORs are by definition engaged in prohibited posting, but this is not necessarily the case, nor is it always desirable. EORs employ workers under Belgian law and social security, often on open-ended contracts, which aligns with the original aims of the legislation.

The view that the "posting" of such workers automatically amounts to a violation of these objectives , or at least requires great vigilance, seems somewhat outdated. Just like the idea that non-recognition as a temporary employment agency presupposes a lack of credibility and quality as an employer.

The irony is that the current legal framework encourages working with freelancers, since for years one can invoke the rather favourable legislation and case law on (absence of) employer authority. Whether some freelancers are in practice subject to a smaller "straitjacket" than what EORs and other project sourcing service providers allegedly transfer to their end customers is highly questionable.

The coalition agreement of 31 January 2025 by Belgium’s so-called “Arizona-government” (named after the political parties’ colors resembling the US state’s flag) signals a pragmatic shift. It aims to expand possibilities for staff transitions between employers while maintaining robust protections against abuse. How these changes will play out in practice remains to be seen.