The Employment Law Review: Belgium
Employment law in Belgium draws mainly on international and domestic sources. International sources include international treaties, European law, including case law of the European Court of Justice, and International Labour Organization conventions. Domestic sources of law include the Constitution, legislation, in particular the Act on Employment Contracts (AEC) of 3 July 1978, decrees issued by the regions and communities, royal and ministerial decrees, collective labour agreements (CLAs), employment contracts, work rules and customs.
Furthermore, case law, in particular that of the Supreme Court and the Constitutional Court, can have considerable influence on the state of the law.
When rules deriving from different sources appear to be inconsistent with one another, different sets of rules apply to determine the rule that will prevail. For example, international law prevails over national law whenever it is directly applicable, and inconsistency between national sources is resolved by Article 51 of the Collective Labour Agreements and Joint Committees Act of 5 December 1968, establishing a hierarchical classification for most of these sources. For example, a custom or a verbal individual agreement deviating from a written individual agreement serves no purpose legally.
In Belgium, labour courts deal with disputes in relation to employment relationships. Labour courts are independent judicial bodies whose jurisdiction covers all matters relating to labour and social security law. The bench comprises one professional judge and two lay judges, one representing the employers and the other the employees. The procedure is accessible to litigants in person. Litigants may be represented by a member of the Bar. Furthermore, employees may be represented by a member of the trade union to which they belong. Enforcement of labour law provisions may also be initiated by other authorities, including the labour inspectorate or tax and social security authorities. The decisions of the labour courts may be reviewed by a labour court of appeal, which has a composition similar to that of the labour courts. Appeals against decisions by a labour court of appeal that would constitute a violation of the law may be lodged with the Supreme Court.
The General Directorate for Supervision of Social Legislation (also called the Social Legislation Inspectorate), which is a department within the Federal Public Service for Employment, Labour and Social Dialogue, provides information to employers and employees, gives advice, arbitrates and verifies whether labour law and the various CLAs are complied with. It has an important role with regard to disputes in individual labour law. Its actions range from preparing drafts of bills and overseeing the operation of existing employment legislation, to registering CLAs and publishing practical comments on legislation. Belgian labour law is related to criminal law, with the exception of the Act on Employment Contracts of 3 July 1978 (see Section II). The Social Legislation Inspectorate can draw up an official report, which could lead to criminal prosecution of the employer.2
Year in review
The federal government of Michel I dissolved in December 2018. Michel II took over as a caretaker government following the elections held in May 2019 and continues to manage the country pending the formation of a new government (which, at the time of publication, is still ongoing). The legislative powers of a caretaker government are limited, therefore the important innovations in employment law are mostly results of earlier government decisions or connected to collective bargaining by social partners.
On 24 December 2018, the 'single permit' procedure became applicable. Citizens of countries that are not part of the European Entrepreneurial Region who want to live and work in Belgium, and their employers, have to follow this new procedure. The single permit procedure replaces the former procedure of separate residence permits and work permits.
Further, on 11 February 2019, a Royal Decree laid down the conditions and procedure to set up positive actions by private enterprises, whereby companies can promote the employment or better participation of (candidate) employees who belong to a group people who are often victims of discrimination.
Belgium was hit by a national strike on 13 February 2019. The collective actions were caused by the discontent of the trade unions with the national wage bargaining system, which they argue limits their freedom to negotiate higher wage increases. Nonetheless, the national social partners concluded a collective agreement on 24 April 2019 on some important future measures of employment and social security law. The outcome of the negotiations was highly uncertain as the socialist trade union did not agree with a cap on wage increases of 1.1 per cent proposed in the midst of difficult discussions about raising the minimum wage. Eventually, the discussion about the minimum wage was postponed and taken out of the negotiations. Alongside the 1.1 per cent wage increase for 2019–2020, the agreement included, inter alia, an increase in the number of voluntary overtime hours from 100 to 120 per year, an increase in employers' contributions to public transport, and an increase in the age limits set within the various systems of unemployment with company contributions (the former bridge pension system).
To reduce the number of company cars and the resulting congestion and exhaust emissions, the Belgian government introduced a cash-for-car system in 2018. On 1 March 2019 a second option entered into force to promote alternative ways of getting around: the mobility budget. The aim of the new system, established by the Act of 29 February 2019, is to give more freedom of choice to the employee, who can now choose to exchange a company car for a mobility budget, which is equal to the annual gross employer's cost of a company car. This budget offers employees three possible alternative mobility options: (1) a more environmentally friendly car; (2) alternative and sustainable modes of transport; and (3) the remaining balance of the budget, paid in cash.
Every four years, Belgian companies within the private sector hold social elections for the worker representatives on works councils and health and safety committees. The Act of 4 April 2020 has amended the general Act on Social Elections of 2007 to introduce some innovations for the forthcoming elections in May 2020. Most important is the introduction of an active voting right for temporary agency workers if they meet certain conditions.
Further, a Royal Decree of 5 May 2019 has made it possible to take parental leave for one-tenth of standard working time (one day per two weeks), after this was laid down by the Act of 28 September 2018. Finally, the Act of 17 May 2019 introduced a time credit system for informal carers of close family members to reduce their working time.
Since May, no new legislation or employment law of substantial importance has been introduced.
In a judgment of 4 February 2019 (No. 29/2019), the Constitutional Court ruled that trade union representatives who are delegated with the tasks of a health and safety committee (CPPW) in companies with fewer than 50 employees also should receive the same dismissal protection as members of the CPPW, even if they do not actually execute any task related to the CPPW.
The Labour Court of Leuven, in a judgment of 11 April 2019, declared a sectoral collective agreement to be non-applicable as it linked wage increases to the seniority of the employee; the Court held that this was in contradiction with the prohibition of discrimination based on age. The CLA stretched the concept of seniority too far in the eyes of the Labour Court, which interpreted as relevant professional experience any professional experience in any profession (even if completely different from the position held in the current company) of any nature (including small part-time jobs) and periods of incapacity equated with actual professional experience, such as absences resulting from illness, accidents, unemployment and thematic leave.
On 16 May 2019, the Belgian state was convicted by the Court of Justice of the European Union (CJEU) (C-509/17) for a contravention of Article 4 of Directive 2001/23/EC, which states that the transfer of an undertaking may not in itself constitute grounds for dismissal for a transferor or transferee. However, the Belgian Continuance of Undertaking Act of 2009 gives a transferee the right to choose which employees he or she wishes to take over, based on technical, economic and organisational reasons, without there being any prohibited differentiation. Employees who are not chosen by the transferee are therefore dismissed and are implicitly, but necessarily, employees for whom no technical, economic or organisational reason dictates the transfer of their contract of employment in the eyes of the transferee, but that does not alter the fact that the transferee is in no way obliged to prove that the redundancies in the context of the transfer are due to technical, economic or organisational reasons. It follows that the protection of employees against unjustified dismissal in the event of judicial reorganisation by transfer under judicial authority is not guaranteed by the Continuance of Undertaking Act.
In a judgment of 20 May 2019 (AR S. 17.0063.F), the Belgian Supreme Court (the Court of Cassation) responded to the question of whether benefits provided by a third party to an employee should be seen as part of his or her salary, on which social security contributions need to be paid. Pursuant to Article 2 of the Wage Protection Act of 12 April 1965, on the protection of the remuneration of workers, remuneration should be understood to mean the salary to which the worker is entitled to charge the employer, because of his or her commitment. The remuneration allocated to workers for work carried out in performance of their employment contract therefore constitutes remuneration within the meaning of the Wage Protection Act, and it is this concept of remuneration that is taken into account for the calculation of social security contributions. Thus, the benefits that a third party pays to the employees of a company, in order for them to sell the third party's product at their place of work to the customers of their employer, constitute 'compensation for the work performed in execution of the existing employment contract between the employees and the company'.
In another important European case, the CJEU (20 June 2019, C-404/18) ruled that witnesses of discrimination are not sufficiently protected by Belgian legislation on discrimination against dismissal, because Belgian law demands a formal written complaint to be filed (with the prevention adviser) , which did not happen in the case at hand.
On 16 September 2019, the Supreme Court (AR S.17.0079.F – S.18.0042.F) had to rule on the question of whether an employee has to pay back undue wages in gross or net form to the employer. Specifically, the question arises as to whether, in addition to the net salary, the employee must first reimburse the withheld tax on wages and, second, the employee's social security contributions. The Court stated that the withheld tax on wages should be reimbursed by the employee, but not the employee's social security contributions, as the relevant laws have explicitly foreseen a claim for employers against the National Office of Social Security.
Basics of entering into an employment relationship
i Employment relationship
In principle, an employment contract may be in writing or oral. Nevertheless, many provisions must be provided in writing, including:
- training clause;3
- non-compete clause;4
- employment contracts concluded for a definite period of time or for a specific project;5
- part-time work;6
- temporary work or interim work;7
- work from home;8
- employment contracts concluded with a foreign worker in certain cases;9
- employment contracts concluded to replace an employee who is temporarily absent (e.g., on maternity or sick leave);10 and
- employment contracts concluded with a student.11
For some of these exceptions, the contract must be signed before employees actually commence work. Sanctions range from nullity (e.g., for a non-compete clause) to the legal presumption that the contract has been concluded for an indefinite period (fixed-term employment contracts or those for a specific project).
Parties can amend an employment contract orally – the law does not impose the presence of a written agreement. The agreed conditions or stipulations of the labour contract cannot be changed unilaterally. However, parties can specify that the employer has the right to change the job function or the working location unilaterally. Without prejudice to the above-mentioned stipulations, the law does not, in principle, impose the presence of particular clauses in the employment contract. The imperative legal and regulatory conditions, as well as the CLAs in general, are, however, deemed to form an integral part of the employment contract and no clause may validly depart from this.
With regard to work rules, these must contain certain clauses, particularly with respect to the duration and hours of employment, reprehensible behaviour and associated disciplinary sanctions, the method and period for payment of remuneration, and terms and conditions for the allocation of annual leave. These clauses are also deemed to form an integral part of the employment contract, except in cases of individual written exceptions.
Employment contracts concluded for a definite period of time, or for a specific project, must give precise indications of the definite period, the specified work (i.e., the job performed) or mention that the contract is for the replacement of an employee (who is identified in the contract). Part-time contracts for a fixed work schedule must state the agreed system and hours to be worked, but for flexible work schedules, the contract need only refer to the provisions of the work rules pertaining thereto. In the absence of a written document containing these specifications, the employee may choose the system and hours of part-time work most favourable to him or her, among those provided for in the work rules or in any other company document.
When it is in written form, a contract of employment must be drawn up in French, Dutch or German. The rule about which language is applicable depends on the location of the employer's operational headquarters (see Section IX).
ii Establishing a presence
Every company that employs workers in Belgium must be registered with the Belgian National Office for Social Security (NOSS). This registration is done automatically by the immediate declaration of employment via the Dimona system. This declaration must be made through the NOSS website.12 For certain specific activities, such as temporary work, an agreement must be obtained. The social security contributions of employees are withheld at source and paid by the employer to the mutual insurance organisations responsible for administering the social security system. The employer is also required to deduct taxes monthly.
Non-Belgian employers who wish to employ someone in Belgium must declare these activities in advance, using the mandatory International Migration Information System (Limosa) declaration.13 In certain cases, the foreign employer must apply for an employment authorisation for its activities in Belgium and its employees must have a Belgian work permit. This obligation is applicable to service provision in the form of temporary employment agency work, provision of labour, exchanges between related companies and the execution of (sub)contracting agreements.
If a foreign employer employs Belgian residents in Belgium, this foreign employer will be deemed to have a Belgian establishment. In this respect, the foreign employer must comply with various tax formalities. It must make the professional income tax deductions, file special individual forms14 as well as a summary form15 to report the salaries paid to its Belgian employees. If Belgian employees carry out operations that are subject to Belgian value added tax (VAT), the foreign employer will have to register with the Belgian VAT authorities. In this respect, monthly or quarterly VAT returns should be filed.
Non-compete clauses can be executed during or after employment. Non-compete clauses must be in writing and are valid if the employee's annual gross remuneration exceeds €35,761. There are also restrictions on their applicability if the annual gross remuneration does not exceed €71,523 (these amounts, applicable for 2020, are updated annually).
In general, a non-compete clause is valid if it is limited to activities similar to those currently performed by the employee and to a well-defined geographical area limited to the national territory, if the new employer is a competitor, and provided the clause does not exceed 12 months. Except for sales representatives, the clause must provide for the payment of an indemnity to the employee equal to at least 50 per cent of the salary corresponding to the duration of the non-compete provision. The clause is not applicable if the employer terminates the contract with a notice period or an indemnity in lieu of notice or if the employee puts an end to the agreement on the basis of a serious breach committed by the employer. Specific rules apply to international companies.
Provided that some specific requirements are met, various departures from the conditions of the general non-compete clause may be made, which means it is a special non-compete clause. This clause may only be used for certain categories of enterprises and for white-collar employees (except sales representatives) with specific functions.
The enterprises concerned have to comply with one of the following conditions:
they must have an international activity or considerable economic, technical or financial interests in the international markets; or
they must have their own research departments.
In such enterprises, the special non-compete clause may be applied only to those employees whose work allows them to acquire, directly or indirectly, a practice or knowledge peculiar to the enterprise, the use of which outside the enterprise could be prejudicial to it.
If these conditions are met, it is possible to deviate from the general non-compete clause on the points of limitation to the national territory and the maximum period of 12 months. The special non-compete clause may also be applicable when the employment contract is terminated by the employer without just cause after six months from the beginning of the contract and if the contract is terminated during the same six months.
Since 2014 it is prohibited to include probationary periods in an employment contract, except in the cases of agency work and student work.
i Working time
Working time means the time during which an employee is available to the employer (in other words, the time during which he or she is under an employer's authority) and that the employee cannot use freely as he or she sees fit. Accordingly, working time may be more extensive than the periods during which work is actually performed (e.g., on-call periods during on-call duty). Working time may not exceed eight hours a day. Moreover, daily work must, in principle, be performed between 6am and 8pm because of the ban on working at night.
In some cases, however, daily working time may be increased as follows:
- to nine hours if the employee does not work more than five-and-a-half days a week (and has a work schedule in which the employee, in addition to his or her weekly day of rest, has at least half-a-day's rest); and
- to 10 hours if the employee is absent from home for more than 14 hours a day because of the distance between the workplace and his or her place of residence or temporary accommodation.
Except for derogations (laid down by royal decree or collective agreement), the length of each work session must be more than three hours.
Working time may not exceed 40 hours a week. On 1 January 2003, a rule was introduced under which working time was generally reduced to 38 hours a week. Under this general reduction to 38 hours, the weekly work schedule that can be applied in undertakings is either 38 effective hours a week, or 38 hours on average over a specified reference period that allows employers to maintain a work schedule of 40 hours per week by granting compensatory days off.
In principle, night work is prohibited. Night work means any work performed between 8pm and 6am. This rule applies without distinction between male and female employees. There are a number of derogations from this principle relating to industrial sectors, particular activities or particular employees. A number of derogations are provided for by law concerning cases in which night work is regarded as normal or inherent in the activity pursued (e.g., the transport sector, energy distribution companies, hospitals, the catering sector (hotels, restaurants, off-licences), surveillance activities and particular cases of force majeure). Night work may also be permitted by royal decree in particular industrial sectors, undertakings, occupations, or for the execution of particular types of work.
Particular types of overtime require:
1. prior authorisation by royal decree for:
- transport operations, loading and unloading (up to a maximum of 11 hours a day and 50 hours a week);
- sectors in which the substances processed can degenerate very quickly (up to a maximum of 11 hours a day and 50 hours a week); and
- work, the execution time of which cannot be clearly defined because of the nature of that work (up to a maximum of 11 hours a day and 50 hours a week); or
2. prior authorisation by the trade union representative and the district inspector or head of the General Directorate for Supervision of Social Legislation (or, in the absence of a trade union representative, authorisation by the inspector or head of district suffices) in the event of an exceptional increase of work (up to a maximum 11 hours a day and 50 hours a week).
Overtime may also be performed in the event of force majeure:
1. without any particular formality, to carry out:
- work for third parties to deal either with the threat of an accident or with an accident that has occurred;
- urgent work on machinery or equipment for third parties;
- work within the undertaking to deal with the threat of an accident or an accident that has occurred; or
- urgent work within the undertaking on machinery or equipment; or
2. with the prior agreement of the trade union representative (or a posteriori information to the representative) and notification of the inspector or head of district for work necessary because of unforeseen circumstances (up to a maximum 11 hours a day and 50 hours a week).
The normal working time limits may also be exceeded for stock-taking (up to a maximum or 11 hours a day and 50 hours a week). This derogation may be used only in respect of work effectively carried out for a period of seven days per employee and per calendar year.
In most cases in which the normal limits on working time may be exceeded, compensatory rest periods must be granted to ensure that the normal weekly working time (38 hours or that determined by collective agreement) is complied with over a reference period. In principle, this reference period is three months (one quarter). However, it may be increased to one year by royal decree, a collective agreement or, in the absence of a royal decree or collective agreement applicable to the undertaking, by the undertaking's terms and conditions of employment.
Derogations giving rise to compensatory rest periods are:
- working in successive shifts;
- continuous work for technical reasons;
- work to which the normal working time limits cannot be applied;
- preparatory and follow-up work;
- transport operations, loading and unloading;
- work whose execution time cannot be determined;
- working with substances that degrade quickly;
- exceptional increase of work;
- work necessary because of unforeseen circumstances; and
- work to deal with the threat of an accident or an accident that has occurred, or urgent repairs to machinery or equipment by employees of a third party.
Apart from the rules concerning the granting of compensatory rest periods, particular instances in which the normal working time limits are exceeded also give rise to overtime payment as a supplement to the normal wage or salary.
All work done in excess of the limits of nine hours a day and 40 hours a week (or lower limits determined by a collective agreement involving an effective reduction to the length of daily or weekly working time) give rise to entitlement to an overtime payment (that the first hour of overtime may be compensated only by rest). The rate of overtime payment is 50 per cent extra for hours worked during the week, including on Saturdays, and 100 per cent extra for hours worked on Sundays or public holidays. Overtime payments must be calculated on the basis of ordinary remuneration (i.e., the average hourly wage that should be paid for the day or week when the employee did overtime).
Derogations giving rise to overtime payment are as follows:
- preparatory or follow-up work;
- transport operations, loading and unloading;
- work for which the execution time cannot be determined;
- working with substances that may degenerate very quickly;
- exceptional increase in workload;
- work justified by unforeseen circumstances;
- work carried out to deal with either an accident that has occurred in the past or a new accident, or urgent repair work to machinery or equipment; and
- work on stocktaking and preparing balance sheets.
The Act of 5 March 2017 introduces a system of voluntary overtime hours. The employee may ask his or her employer to work a maximum of 120 overtime hours on top of his or her ordinary hours with a view to enhance his or her remuneration.16 A written agreement is needed prior to commencing voluntary overtime. This agreement is valid for six months and may be renewed. However, the limits of 11 hours a day and 50 hours a week cannot be exceeded. Voluntary overtime hours may be accomplished without any specific procedure or particular reason for doing so.
There is a general obligation to notify the Belgian authorities of foreign employed or self-employed persons.
Some categories of persons are exempt from this notification, however, because of the nature or short duration of the activities being carried out in Belgium (artists, international transport sector employees, diplomats, participants in scientific conferences, etc.). Belgian law requires, with a number of exceptions, every employer to draw up terms and conditions of employment and to maintain a staff register.
If posting an employee to Belgium, an employer who has served a Limosa notification (see Section IV.ii) or who enjoys dispensation in this regard, is exempt from the obligation to draw up and maintain social documents, such as a staff register, for six months.
As the terms and conditions of employment contain particular information (schedules of working hours, the method of wage and salary payment, etc.), it constitutes a basic document against which it is verified whether certain fundamental rules of labour law are being applied correctly (working time, rest time, etc.). It is also an important instrument for the employer to detail a number of special obligations for its employees.
Through the staff register, an employee can be lawfully listed.
In principle, nationals from Member States of the European Economic Area (EEA) may be hired without specific restrictions, whereas other foreigners need to obtain a work permit. In 2019, the single permit was introduced, combining the work permit and residence permit into one procedure. Exceptions do exist, however. For example, Belgium-based headquarters of Belgian or foreign companies are not required to obtain work permits for non-EEA citizens employed in a managerial position (e.g., project managers, leaders of research and development teams, planning engineers, chief executive officers, chief financial officers) provided well-defined conditions are met.
In general, foreign employees are subject to the majority of the rules that apply to Belgian employees. Moreover, all social law stipulations subject to penal sanctions (the vast majority) are also applicable to employees temporarily posted to Belgium.
Work rules must be established in every enterprise, even if there is only one employee present. The works council is competent to draft and amend the work rules and to take all steps required for informing employees thereof. If there is no works council, the trade union representatives or the employees themselves must approve the rules. The Act of 8 April 1965 lays down the procedure to be followed. If there is no works council, proposals for the establishment of work rules must be made by the employer, who must bring such proposals to the attention of the employees by posting notices.
The work rules must specify the offences and their related sanctions and the possibilities of redress open to employees who wish to object to the sanctions. All applicable sanctions (fines, suspension, etc.) must be specified in the work rules. On the first working day after becoming aware of an infringement by an employee, the employer or its representative must communicate the sanctions to the employee. The employee's name, the date, justification and sanction have to be registered. Although work rules are binding on both employer and employees, they can be derogated from in an individual contract of employment. Work rules are only binding on individual employees when they have received a copy of them from their employer, even if they were informed through different channels.
Belgian law generally prohibits direct and indirect discrimination. Equal treatment is the subject of an Act of 10 May 2007, which combats discrimination based on gender. This Act also prohibits discrimination on the basis of pregnancy, birth, maternity or change of gender. Another Act of 10 May 2007 concerns the prohibition of certain forms of discrimination, creating a general framework for the prevention of discrimination on the grounds of age, sexual orientation, civil status, birth, finances, religion or belief, political opinions, language, present or future health, disability, physical or genetic characteristics, or social origin. This Act applies to all individuals in both the public and private sectors, including in relation to employment issues. Further, the Act of 30 July 1981 (adjusted in 2007) combating racism and xenophobia prohibits discrimination based on nationality, race, colour, descent, or national or ethnic origin. Finally, Chapter V bis of the Act of 4 August 1996 contains measures aimed at preventing harassment and violence at work as well as a procedure for handling harassment and violence claims, and punishing harassment or violent misconduct in the workplace.
Female employees are entitled to maternity leave lasting 15 weeks (17 for twins). Pre-natal leave (during the pregnancy) can be granted for up to six weeks. Every pregnant employee is obliged to stay home from work from the seventh day before the expected date of birth of the child. The period of rest starting from the day of the birth (post-natal leave) must be at least nine weeks. A maternity allowance is provided by the employee's health insurance fund; the amount is fixed as a percentage of salary. During the first 30 days of maternity leave, the allowance shall be calculated on the basis of the full salary. Afterwards, a capped salary is taken into account. Pregnant employees are protected against dismissal from the day they notify their employer of the pregnancy until one month after the end of post-natal leave.
Male employees are entitled to paternity leave for 10 working days. These days have to be taken within four months of the birth, but fathers are not obliged to take their paternity leave. During the first three days of paternity leave, the employee retains his full salary. For the days that follow, the employee receives an allowance from his health insurance fund. When there is no genetic father, a co-parent can claim the same leave. If the mother dies in childbirth or if she is hospitalised, a part of the maternity leave can be transformed into paternity leave. In any case, employees who take paternity leave are protected against dismissal.
In addition to maternity leave and paternity leave, parents are entitled to four months of parental leave. Full-time employees can take these months as full months or in separate full weeks (if the employer agrees) or split the leave by reducing their working time by one-half, one-fifth or even one-tenth (if the employer agrees). Parental leave can be taken at any time until the child turns 12 years old. A parent can take his or her parental leave if, during the 15 months preceding a written notification to the employer, he or she has been associated for 12 months with an employment contract with the employer. During parental leave, the parent can receive a benefit from the National Employment Office. Employees who take their parental leave are protected against dismissal.
Belgium is a multilingual federal state made up of regions (Brussels, Flanders and Wallonia) and communities (French, Flemish17 and German).
The language for 'social relations' between employers and employees, and for company documents prescribed by law, varies from one linguistic region to another.
The rules that apply depend on the location of the employer's operational headquarters. If this is in Flanders, the language used must be Dutch;18 if it is in Wallonia, the language used must be French;19 and if it is in the German-speaking community, the language used must be German.20 If it is in the bilingual Brussels region, either French or Dutch may be used, depending on the first language of the employee.21 The employer may add a translation into one or more languages.
In Flanders and Wallonia, these language requirements also apply to any other official written documents and oral communications. If they are not observed, the documents and communications concerned are deemed null and void.
In the Brussels region and in the German-speaking community, the above-mentioned language rule applies to any official written documents, but not to oral communications. Failure to use the correct language does not have any direct consequences as long as the employer issues a new document to replace the incorrect one: the replacement applies ab initio.
Given the broad interpretation of social relations by Belgian courts, all documents containing instructions, communications and specific information for employees should be drafted in the correct language.
In a judgment of 16 April 2013,22 the CJEU ruled that EU law must be interpreted as precluding legislation of a federated entity of a Member State, such as that applicable in Flanders, which requires all employers whose established place of business is located in that entity's territory to draft cross-border employment contracts exclusively in the official language of that federated entity, failing which the contracts are to be declared null and void by the national courts of their own motion.
The Flemish Decree on the use of languages in social relations has been modified with a view to ensuring compliance with that ruling. It now provides that a version having legal force may be established for employment contracts in one of the languages of the European Union understood by all the parties concerned in cases where the employee may claim free movement rights on the basis of EU law or of any other international or supranational treaty. In the event of any conflict with the Dutch version, the Dutch version of the contract will prevail.
A works council is a joint committee at enterprise level designed to foster employer and employee consultation and collaboration. It comprises the head of the enterprise, assisted by a number of senior executives and an elected workers' delegation. The works council has competence in four areas:
- the right to information;
- advisory competence;
- decisive competence; and
- managerial competence.
In terms of content, works councils are competent at the technical, economic and social levels.
At companies operating within the private sector (i.e., technical operating units), and employing at least 100 people, works councils must be set up through social elections. These elections are held every four years by the employer (head of the enterprise), who is statutorily obliged to do so. Electoral guidelines are regulated by the Act of 4 December 2007, largely along established lines.
The works council meets at least once a month at the request of the head of the enterprise or at least one-third of its members. The premises and supplies required for meetings shall be made available by the employer, and the employer must also give the representatives the necessary time off – with pay – and facilities to enable them to perform their task as well as possible. Under certain conditions, the representatives are entitled to participate in labour education programmes during working time, while retaining their pay. Workers' representatives and non-elected candidates enjoy special protection against dismissal.
At the company level, there are three representative bodies: the works council, the committee for prevention and protection in the workplace, and the staff representatives' delegation. At any enterprise employing at least 50 people, a committee for prevention and protection in the workplace must be set up; its main purpose will be responsibility for the enterprise's prevention and security policy.
The members of the works councils and the committees are elected by all staff members (even if they are not part of a trade union) from electoral lists presented by the three most important trade unions. If there are more than 15 employees with higher qualifications (e.g., a master's degree) who are employed in managerial positions (known as cadres), a separate representation is provided for them in the works council. As far as the nominations for the candidates are concerned, the monopoly of the traditional representative trade unions is no longer in place. Nominations can now be made by the traditional representative trade unions, the representative unions of cadres, or by 10 per cent of the cadres in the enterprise, thus allowing for independent candidates to be considered for election.
Employee representation (protected concerted activity)
The protection of personal data concerning employees is regulated by, among other legislation, the GDPR.
The GDPR lays down certain conditions that have to be met when an employer wants to collect or process personal data. The processing of data is allowed only for legitimate purposes, such as the good execution of an employment contract, internal communications or the processing of data in connection with recruitment practices. The processing of data is also allowed with the voluntary authorisation of the employee. The employer must keep a register of processing operations, which should include the following information relating to personal data:
- the purpose of processing the data;
- what data is being processed and the person to whom it belongs;
- who receives the data, including those outside the European Union;
- how long the employer keeps the data; and
- how the employer protects the data.
The employer must, in certain cases, also appoint a data protection officer, who will supervise compliance with the GDPR. There are also means for the employees to control the processed data and, if necessary, ask for incorrect data to be corrected.
Biological tests, medical examinations or other reasons for gathering medical information (orally) regarding the state of health of an employee or a candidate for a job (or of their family) may only be performed for reasons relating to the actual state of health of an employee with regard to the specific requirements of the job. Predictive genetic examinations and AIDS/HIV tests are prohibited.23 It is forbidden to gather data that could indicate racial or ethnic origin, political opinions, religious or philosophical convictions, membership of trade unions, or information concerning the sex life of citizens in general and employees alike. The processing of sensitive personal data is allowed if it is necessary for specific reasons, such as public interest, legal claims, labour law and social security.24
Since 1 April 2014, all employees have the right to know the concrete reasons that have led to their dismissal. Previously, except in certain situations, only blue-collar employees and employees dismissed for serious wrongdoing enjoyed that right. Employees may also seek damages if they consider that they have been dismissed on manifestly unreasonable grounds. In practice, the grounds for termination will often be stated in the document that employers submit to the National Employment Office. This document is communicated to the employee at the same time, to enable him or her to claim unemployment benefits.
Normally, there are no notification or consultation procedures unless there is a collective dismissal or plant closure, or if a collective bargaining agreement provides for a specific procedure. Offers of suitable alternative employment are not required.
The termination of an employment contract is always definitive. The only remedy is financial compensation. There is no possibility for obligatory reinstatement of the employee. Certain categories of employees are statutorily protected against dismissal, such as members and candidates of the works council, members of a trade union delegation, pregnant employees and employees on maternity or parental leave.
Employment contracts concluded for an indefinite period may only be terminated by one of the parties through prior notification of a notice period. Termination for a serious reason constitutes, in principle, the only permissible circumstance for unilateral termination without prior notice. In practice, however, it is possible for either of the parties to terminate the contract without prior notice, provided compensation is paid.
Since 1 January 2014, notice periods are the same for all employees in all sectors, subject to exceptions. It is not clear whether the employer and employee are able to agree on a notice period different from that contained in the AEC, but there is no provision in the AEC that would suggest that it is prohibited, as long the different provision is favourable to the employee.
Where multiple redundancies qualify as a collective dismissal, the legislation on collective dismissals applies and possibly the legislation regarding the closure of enterprises. A collective dismissal triggers the prior information and consultation obligations towards the employees (either through the works council or, if there is none, the union delegation, or, failing this, the employees in person). The intention to proceed with collective dismissal must also be communicated to the competent administration (the director of the subregional employment office). In principle, a collective dismissal gives rise to the payment of a special monthly compensation payment in addition to any indemnity due in lieu of notice.
In the majority of cases, employers and trade union organisations establish a social plan granting additional compensation to the workers concerned and other measures with a view towards reducing the consequences of collective dismissal (e.g., early retirement schemes).
Note that the concept of collective dismissal varies according to whether consideration is given to the right of employees to prior information and consultation, or the employees' right to receive compensation.
In some sectors, there will also be specific obligations for employers if the multiple redundancies do not meet the thresholds of the national legislation.
Transfer of business
Under Belgian law, the consequences for employees of a transfer of an undertaking or a part thereof are governed by the Collective Labour Agreement No. 32 bis of 7 June 1985 (CLA 32 bis), which transposed into Belgian law EU Council Directive 77/178/EC of 14 February 1977 (replaced by Council Directive 2001/23/EC).
i Information and consultation prior to the transfer
Under Belgian law, an employer who intends to amend the structure of the company (merger, concentration, takeover, closure or other important structural amendments negotiated by the company) has an obligation to inform and consult the employees' representatives (i.e., the representatives in the works council, the committee for prevention and protection in the workplace or the trade union delegation) or the employees directly about such a project.
The relevant information should be provided and the consultation should take place before the decision on the planned change in structure. The employees' representatives must be consulted, in advance, in particular with regard to the repercussions on the employment prospects for the personnel, the work organisation, and the employment policy in general.
Failure to comply with this obligation would render the employer liable to criminal sanctions (a fine of between €400 and €34,000 to be multiplied by the number of employees employed within the company, up to a maximum of €400,000), in accordance with Article 196 of the Penal Social Code.
ii Consequences of transferring employment contracts
AUTOMATIC TRANSFER OF CONTRACTS
In the event of a transfer within the meaning of CLA 32 bis, the rights and obligations of the transferring employer arising from the employment contracts existing on the date of transfer are automatically transferred to the new employer (transferee). In some sectors, the transfer of the contracts is quasi-automatic (i.e., it is always deemed to fall under CLA 32 bis) – for example, in the cleaning and security sectors – which makes it impossible to dismiss the employees.
The transferee automatically takes over all rights and obligations of the transferring employer, without any specific formalities having to be complied with. Only for old age, health-related or survivors' benefits, under complementary company or inter-company schemes, does CLA 32 bis not provide for an automatic transfer.
After the date when the transfer takes effect, the transferee must respect all individual and collective employment agreements under the same conditions as the transferring employer. It follows that all essential employment conditions (including remuneration, job status, acquired seniority, place of performance and working conditions) should remain unaffected; the new employer may not modify them unilaterally after the transfer date.
After the date when the transfer takes effect, the transferee becomes solely liable for all debts resulting from the transferred employment contracts, including payment of indemnities in the event of dismissal of any of the transferred employees. For debts already existing at the date of transfer (e.g., salary arrears), the transferor and the transferee will both be liable (in solidum).
PROHIBITION AGAINST DISMISSAL
Pursuant to CLA 32 bis, it is prohibited to dismiss employees on the grounds of the transfer of the undertaking within which they are employed. This prohibition applies to both the transferor and the transferee. Moreover, it concerns not only the dismissal concomitant to the transfer, but also any dismissal occurring a short time before or after the transfer.
Failure to comply with this obligation would render the employer liable to an administrative penalty consisting of a fine of between €80 and €800, multiplied by the number of employees affected, up to a limit of €80,000.
In addition to these administrative sanctions, any employee illegally dismissed by the transferor is entitled to initiate a court procedure against both the transferor and the transferee to obtain the payment of a termination indemnity or damages (the illegality of the dismissal does not have as a consequence that the dismissal would be considered null and void). Case law generally sets the amount of damages between €500 and €10,000.
CLA 32 bis provides for some derogations to the prohibition against dismissal. They concern, on the one hand, some categories of employees (such as those nearing retirement age and students) and, on the other hand, some reasons for dismissal. This second kind of derogation relates to dismissal for serious reasons or based on technical, economic or organisational grounds implying changes in employment within the undertaking. If an employee is dismissed without any of these reasons being present before the moment of transfer, then according to the case law of the CJEU, this employee must still be considered as an employee of the enterprise, meaning that his or her employment contract will have to be regarded as legally transferable to the transferee. If the transfer ultimately results in a significant change in working conditions to the detriment of the employee, the employment contract will be considered to be breached by acts on the part of the employer (i.e., constructive dismissal).
These protection rules apply in the event of a transfer of enterprise by virtue of an agreement. When a transfer occurs within the framework of a legal composition procedure, CLA 32 bis provides for some exceptions to these rules. As a result of the Act of 31 January 2009 concerning the continuance of undertaking, the legal composition procedure has been replaced by a new procedure. Article 61 of this Act regulates the position of the employees in the event of a transfer of enterprise under judicial authority. The regulation applied here means that the protection rules are defined less stringently so that the transferee has more flexibility. For example, it is easier for a transferee to change the collective and individual working conditions, and he or she is no longer obliged to take over all employment contracts (however, refer to the significant cases).
As employment law is mostly a federal competence and Belgium is still waiting for a new federal government to be formed, there are currently no major new projects ahead. Most new legal initiatives will depend on which political parties will be included in the majority coalition, on the plans in their coalition agreement and on the politician who will be appointed as Minister of Work. In the meantime, the national social partners continue to talk about social issues, including the increase in the minimum wage (for now, unsuccessfully).
1 Chris Van Olmen is the founding partner of Van Olmen & Wynant.
2 Act of 6 June 2010 introducing the Penal Social Code.
3 Act on Employment Contracts [AEC], Article 22 bis.
4 id., at Articles 65, 86 and 104.
5 id., at Article 9.
6 id., at Article 11 bis.
7 Act of 24 July 1987.
8 AEC, Article 119.1 to 119.12.
9 Royal Decree of 9 June 1999, Articles 12 and 13.
10 AEC, Article 11 ter.
11 id., at Article 123.
14 For example, Form 281.10.
15 For example, Form 325.10 for employees.
16 This amount was increased in 2019; previously, the maximum was 100.
17 It is the Flemish community, but Flemish is not a language. The language of Flanders is Dutch.
18 Decree of 19 July 1973.
19 Decree of 30 June 1982.
20 Laws on the use of languages coordinated by Royal Decree of 18 July 1966.
22 Case C-202/11.
23 Act of 28 January 2003.
24 See GDPR, Article 9 and Act of 30 July 2018, Article 9.