Use the Lexology Navigator tool to compare the answers in this article with those from other jurisdictions.

Country snapshot

Key considerations
Which issues would you most highlight to someone new to your country?

Belgian labour law contains detailed provisions on the language to be used in the employer/employee relationship, which must be Dutch, French or German, depending on the place of employment. Documents drafted in breach of this legislation in Flanders and the Walloon region are void ex tunc: they are deemed never to have existed. If the place of employment is in Brussels, the nullity can be countervailed by providing a translation in the correct language, which will have effect as from the original date of the original document. Nullity on grounds of language cannot be invoked against an employee; thus, the employee wields power in this respect.

In view of the 2015 budget, the government decided to keep Belgium’s automatic wage indexation mechanism, but freeze its application for 2015. Belgium’s social partners must also fix a margin within which the average salary may increase (the ‘wage bracket’). On April 28 2015 a wage bracket of 0% for 2015 and 0.5% for 2016 (with the amount for 2016 to be increased by 0.3% of the net remuneration without additional cost to the employer) was brought into law. This is intended to promote employment and protect Belgium’s competitive position on the market by ensuring that salary inflation does not outpace that of its neighbours (ie, Germany, France and the Netherlands).

Contrary to earlier agreements between social partners, the wage bracket established on April 28 2015 is not a guideline, but a binding obligation for each employer.

What do you consider unique to those doing business in your country?

Belgian legislation regarding dismissals is very specific – especially so since the 2013 reform. Compared to neighbouring countries, dismissing an employee in Belgium is a relatively simple procedure; however, the cost of dismissing an employee is higher (especially for those employed before 2014).

Is there any general advice you would give in the employment area?

Belgian labour law – with its strict provisions and extensive legislation – can be complex and should be analysed on a case-by-case basis. Before employing workers and implementing certain policies, organisations should familiarise themselves with the rules that apply to both employers and employees. 

Emerging issues/hot topics/proposals for reform
Are there any noteworthy proposals for reform in your jurisdiction?

Belgium’s social partners have reached an agreement to harmonise the status of blue-collar and white-collar workers. The process has started and will be further executed in the coming years.

What are the emerging trends in employment law in your jurisdiction?

Recent measures to reduce the impact of the economic crisis and lower the relevant labour-related costs for the government include higher pension thresholds, reduction of early retirement systems and wage freezes.

The employment relationship

Country specific laws
What laws and regulations govern the employment relationship?

Three categories of rules and statutes govern the employment relationship.

The first set covers individual employment contracts between the employer and each employee. Although the parties are largely free to determine the contents of employment contracts, there are a number of mandatory rules. Most of these are contained in the Law on Employment Contracts.

The second set covers a wide spectrum of matters addressed in separate legislation. These rules usually constitute a minimum level of protection for each employee and are generally common to all employees. Collective bargaining agreements concluded at company or industry level may establish a higher level of protection.

The third set covers collective labour relations and governs the organisation of trade unions, representation of employees and mechanisms for collective bargaining. 

Who do these cover, including categories of worker?

The Law on Employment Contracts has a wide scope. It covers most employment contracts and addresses a wide variety of issues relating to – among other things – the formation, duration, content, suspension and termination of employment contracts. It covers five categories of employee: blue-collar employees, white-collar employees, commercial representatives, employees working from home and students.

The second set of rules covers a wide spectrum of matters addressed in separate legislation, including maximum working hours, legal holidays, minimum remuneration and working conditions.

Misclassification
Are there specific rules regarding employee/contractor classification?

Under the Law of December 27 2006, the parties to an agreement are free to organise the manner in which they collaborate – namely, as independent parties (eg, self-employed workers) or through an employment contract. A continued and personal relationship of subordination of the worker towards the contracting partner distinguishes an employment contract from a contract with a self-employed worker.

In order to assess whether the choice of the parties is in line with the law and reality, and to qualify the contractual relationship for social security purposes, the law sets out four criteria:

  • the parties’ will (ie, what has been agreed upon);
  • the freedom (or absence thereof) of the individual to organise his or her working time;
  • the freedom (or absence thereof) of the individual to organise his or her work; and
  • the possibility (or impossibility) of performing hierarchic control over the individual concerned.

In some specific sectors (eg, construction, security, transportation and cleaning) additional and specific criteria are applicable.

Contracts
Must an employment contract be in writing?

In general, the Law on Employment Contracts does not impose specific formalities for the formation of an employment contract. An agreement may be oral or even tacit. However, in order to avoid evidentiary problems if a conflict arises between the parties, an agreement is best executed in writing.

Not all employment contracts may be oral. The Law on Employment Contracts provides that the following types of contract must be executed in writing:

  • contracts for a fixed period or for a specific project;
  • part-time employment contracts;
  • contracts for employees working from home/remotely; and
  • replacement contracts.

When an employment contract is not in writing, it is deemed to have been concluded for an indefinite duration.

In addition, some clauses must be executed in writing in order to bind the parties.

Are any terms implied into employment contracts?

Some terms are embedded in the Law on Employment Contracts and other legislation and are thus always applicable to all employees (eg, relating to termination, obligations and rights of employees, trade or business secrets and unfair competition) 

Are mandatory arbitration/dispute resolution agreements enforceable?

An arbitration clause cannot be included in an employment agreement for an employee earning less than €66,406 (as adjusted) gross per year. Only if the gross annual salary exceeds this amount and the employee is responsible for the daily management of the company or business unit can an arbitration clause be included and enforced.

How can employers make changes to existing employment agreements?

As a general rule, neither employers nor employees can modify working conditions unilaterally. Contractual clauses which entitle the employer to unilaterally modify contractual provisions are null and void. The courts have held that the unilateral modification of working conditions will amount to illegal termination, where:

  • the modification concerns either an essential element of the employment contract or a working condition that has been expressly agreed. Traditionally, essential elements include:
    • place of work;
    • duration and timetable of work;
    • function and responsibilities; and
    • remuneration;
  • the modification is unilateral. A modification becomes bilateral if the employee accepts the modification. Such acceptance may be express or result from the conduct of the employee. In this respect, the courts usually grant the employee a short period during which he or she may decide whether to accept such modification; and
  • the modification is definitive.

However, within certain limits, the courts have accepted that employment contracts may be modified unilaterally by the employer if the changes are:

  • justifiable for economic reasons and the impact of such changes is not considered significant; or
  • the employee is duly compensated.

Foreign workers
Is a distinction drawn between local and foreign workers?

Non-European Economic Area (EEA) nationals (and workers from some new EU member states) exercising an activity as an employee or self-employed worker in Belgium must possess a visa and work permit (for employees) or professional card (for the self-employed). In principle, all EEA nationals are free to work in Belgium.

Depending on the circumstances and personal situation of the person concerned, certain exceptions (eg, short-term stay for business meetings) may apply.

Foreign employers who temporarily assign personnel to Belgium must register these employees with the Belgian social security authorities before the start of their activities in Belgium (using the LIMOSA system). There are certain exemptions from this requirement, mainly depending on the reason for working in Belgium and the duration of the stay.

During the employment or related activities in Belgium:

  • the Belgian mandatory employment rules must be respected (eg, working time, minimum remuneration and termination rules);
  • all formalities must be complied with (eg, the DIMONA/LIMOSA system, employment contract and work rules); and
  • all affiliations must be in order (eg, social security, tax authorities and labour accident insurance).

Recruitment

Advertising
What are the requirements relating to advertising positions?

The law requires equal treatment of men and women as regards working conditions, access to employment and promotion opportunities and access to independent professions. This includes the selection process and criteria, and applies irrespective of the sector or activity concerned or the position within the employer's hierarchy. An employer may not directly or indirectly:

  • refer to the gender of employees in employment offers; or
  • determine access conditions or selection criteria on the basis of gender.

The conditions of access to a position or professional activity may refer to the employee or applicant’s gender only where gender constitutes an essential aspect of the employment, given its nature or the conditions of its performance.

Further, the Law of July 30 1981 on the punishment of certain acts inspired by racism or xenophobia penalises discrimination on account of race, colour, origin or nationality. Penalties include imprisonment and fines.

Background checks
What can employers do with regard to background checks and inquiries in relation to the following:

(a) Criminal records?

Collective Bargaining Agreement 38 regulates the recruitment and selection of employees and lays down a code of conduct in this regard.

In particular, it lays down the following principles:

  • The employer may not treat applicants in a discriminatory manner.
  • The employer must respect the applicant’s privacy throughout the selection procedure.

Only information which is required and relevant for the function can be requested. Therefore, criminal records can be requested (in the form of an attestation of good conduct) only if required for and relevant to the function.

(b) Medical history?

Only information which is required for and relevant to the function can be requested. Otherwise, the candidate is entitled not to answer the question based on his or her right to privacy. For certain functions (eg, those with special safety requirements or where the employee is exposed to the risk of disease), a medical examination is allowed and can even be mandatory. The doctor undertaking the examination may inform the employer only whether the employee can perform the activities; further details may not be disclosed.

(c) Drug screening?

Only information which is required and relevant for the function can be requested. Otherwise, the candidate is entitled not to answer the question based on his or her right to privacy. For certain functions (eg, those with special safety requirements), a drug screening is allowed. The doctor may inform the employer only whether the employee can perform the required activities; further details cannot be disclosed.

(d) Credit checks?

Only information which is required for and relevant to the function can be requested. Otherwise, the candidate is entitled not to answer the question based on his or her right to privacy.

(e) Immigration status?

Only information which is required for and relevant to the function can be requested. Otherwise, the candidate is entitled not to answer the question based on his or her right to privacy. If the employee needs a work permit and visa, the employer may request a copy of these documents.

(f) Social media?

Information on social media which is freely accessible is, in principle, considered to be public. This information can be used; however, only information which is required for and relevant to the function can be taken into account.

(g) Other?

N/A.

Wages and working time

Pay
Is there a national minimum wage and, if so, what is it?

In principle, the contracting parties are free to determine the level of remuneration. Typically, this will be a fixed amount, a variable commission fee or a combination of the two. However, in most industrial sectors, collective bargaining agreements set minimum wages for each category of employee or function. Where the minimum wage is determined by a collective bargaining agreement, the parties to an employment agreement may not deviate from it. For sectors where no specific collective bargaining agreement exists, national Collective Bargaining Agreement 43 imposes a guaranteed minimum monthly gross remuneration of approximately:

  • €1,387.49 (for employees aged 21 and over);
  • €1,424.31 (for employees aged 21.5 and over with at least six months’ seniority); and
  • €1,440.67 (for employees aged 22 and over with at least 12 months’ seniority).

This amount is adjusted regularly with reference to the consumer products index. 

Are there restrictions on working hours?

Standard working hours may not exceed eight hours per day or 38 hours per week. However, it is permissible to provide for a 40-hour working week whereby the extra weekly working hours are compensated for with time off. Although in Belgium the working week is commonly limited to five days, the Labour Act provides that work may be performed over six days per week. In many sectors, collective bargaining agreements have limited the working week to five working days and to 37 or 38 hours per week.

Hours and overtime
What are the requirements for meal and rest breaks?

If a working period exceeds six hours, the employee is entitled to a break. The duration and conditions of this break are regulated in a collective bargaining agreement concluded at sector or company level. If no collective bargaining agreement exists, the duration of the break will be 15 minutes.

Each employee is entitled to at least 11 consecutive hours of resting time per 24-hour period. There are exceptions to this rule.

How should overtime be calculated?

Not all work performed beyond the specified time limits will give rise to overtime pay. Overtime pay is due only for work performed as from the 10th hour per day or 41st hour per week. However, where a collective bargaining agreement has reduced working hours to less than 40 hours per week (ie, where the reduction in working hours is not the result of the application of the Royal Decree of December 11 1998), any work performed beyond this reduced number must be considered overtime.

Exceptions include work performed under flexible working hours, shift work and work which may not be interrupted.

Overtime pay normally amounts to 150% of regular pay. However, overtime pay for Sundays and legal holidays amounts to 200% of regular pay.

What exemptions are there from overtime?

The rules on overtime do not apply to – among others – persons who are entrusted with supervisory or high-level positions (eg, directors, managers, assistant managers and heads of department), sales representatives and employees who work from home.

The Labour Act lists a number of exceptions to the general prohibition on overtime. These generally relate to the type of work to be performed, including shift work, urgent work, work which may not be interrupted and work in specific sectors. In these cases, the working time limits vary according to the type of work (eg, 11 hours per day for shift work or 12 hours per day (or more, for overtime pay) for work which may not be interrupted).

Regarding work which gives rise to overtime as listed by the law (eg, shift work, work on inventories and preparatory work), a weekly work limit of 50 hours applies. In exceptional cases, however, even this limit may be exceeded (eg, for urgent work involving machinery). Also, for certain sectors or categories of undertaking, the 50-hour limit may be exceeded as a result of a decision by the government.

Is there a minimum paid holiday entitlement?

Employees with a six-day working week are entitled to two days’ paid holiday per month worked during the previous calendar year. Employees with a five-day working week are entitled to 20 days’ paid holiday per year. Collective bargaining agreements in specific sectors or industries often contain more generous provisions.

What are the rules applicable to final pay and deductions from wages?

Seizures or cessions of remuneration and possible deductions must be made in accordance with the conditions and within the limits of the applicable provisions – namely, the Act of April 12 1965 and the Judicial Code.

The following deductions may be made on employees’ remuneration:

  • tax and social security deductions, in compliance with legislation and individual or collective agreements;
  • fines imposed under work rules;
  • penalties in the form of compensation or damages against employees; and
  • cash advances paid by the employer on income not yet accrued.

Social security and tax deductions are determined by the applicable provisions. These deductions are calculated on the total gross remuneration and carried out at source without limitation.

Other deductions (eg, fines, compensation and damages payable in cash and advances) are calculated on the net remuneration only, after the deduction of social security contributions and tax withholdings. The total of these other deductions may not exceed 20% of the net remuneration due each payday. However, this limitation does not apply if the employee has committed fraud or voluntarily terminated his or her contract before the settlement of compensation or damages for which he or she is liable.

Record keeping
What payroll and payment records must be maintained?

Employers must maintain records of both payslips and individual accounts.

Discrimination, harassment & family leave

What is the position in relation to:
Protected categories

(a) Age?

A distinction based on age is allowed only where it is based on an objective and reasonable justification. A justified distinction should involve a legitimate goal and the appropriate and necessary means to achieve this goal.

An unjustified distinction will violate protections against direct and indirect discrimination.

(b) Race

Only a justified distinction (see above) is allowed. An unjustified distinction will violate protections against direct and indirect discrimination.

(c) Disability?

Only a justified distinction (see above) is allowed. An unjustified distinction will violate protections against direct and indirect discrimination.

(d) Gender?

Only a justified distinction (see above) is allowed. An unjustified distinction will violate protections against direct and indirect discrimination.

(e) Sexual orientation?

Only a justified distinction (see above) is allowed. An unjustified distinction will violate protections against direct and indirect discrimination.

(f) Religion?

Only a justified distinction (see above) is allowed. An unjustified distinction will violate protections against direct and indirect discrimination.

(g) Medical?

Only a justified distinction (see above) is allowed. An unjustified distinction will violate protections against direct and indirect discrimination.

(h) Other?

Other protected categories include social background, language, political background and financial situation. 

Family and medical leave
What is the position in relation to family and medical leave?

Maternity leave
On presentation of a medical certificate, the employee is entitled to a rest period of up to seven weeks preceding the expected delivery date. The employee may not work on or after the seventh day prior to the expected date of delivery. If delivery takes place at a later date, the rest period will be extended accordingly. The employment contract is also legally suspended during the nine weeks following the delivery. If the employee has not taken full advantage of the non-compulsory pre-delivery six-week rest period, the remainder may be added to the post-delivery rest period. In practice, this means that the employment contract will be suspended for a total of 15 weeks.

Special protective rules apply to breastfeeding mothers and to employees carrying out dangerous work. During the period of suspension, the employer is not obliged to pay any salary. A special indemnity will be paid by the health insurance company during the employee’s absence from work. The father is entitled to 10 days’ leave.

Parental leave
The parent of a child may take up to four months’ parental leave (distributed over four, eight or 20 months), at any time until the child reaches 12 years of age. During the suspension period, the employer is not obliged to pay any salary; a special indemnity will be paid by the government.

Medical leave
White-collar employees will receive one month’s guaranteed income from the employer in case of incapacity due to illness or invalidity. After this first month, the employee will receive a reduced income from the health insurance provider.

For blue-collar workers, a patchwork of rules applies for the first month of medical leave, which can be summarised as follows:

  • first seven-day period – 100% guaranteed income;
  • second seven-day period – 85.88% of income; and
  • from 15th to 30th day – 25.88% of income which does not exceed the wage limit determined by the health insurance policy and 85.88% of income that exceeds this limit.

After this first month, the worker will receive a reduced income from the health insurance provider.

Harassment
What is the position in relation to harassment?

A new regulatory framework governing the prevention of psychosocial risks at work came into force on September 1 2014. Instead of being limited to violence, harassment and sexual harassment at work, it now covers all psychosocial risks that could lead to stress, burn-out and other consequences.

All employers should have a policy regarding psychosocial risks (including measures and procedures against violence, harassment and sexual harassment) in line with the law. This policy must contain procedures to be followed by the employees concerned.

Whistleblowing
What is the position in relation to whistleblowing?

Belgium has no legal framework for whistleblowing in the private sector. It is possible to introduce a whistleblowing procedure, but data protection rules should be respected.

According to the Commission for the Protection of Privacy, the following principles should be respected where a whistleblowing policy is introduced:

  • The introduction of the policy should be justified by legal or regulatory obligations.
  • No duty to report may be introduced, discretion should be guaranteed and protection should be provided against fault by any party handling personal data.
  • The procedure should remain complementary to normal hierarchical control mechanisms and should be used only for information which is relevant for the good management of the company.
  • The person receiving the complaint should verify that the personal data is correct;
  • Employee representatives (eg, the works council, the committee for prevention and protection in the workplace, the syndical delegation and employees) should be informed about the system.
  • Personal data may not be used for other purposes.
  • Any concerned employee should have the right to verify and correct his or her personal data and request to be informed regarding the treatment of the data and any consequences.
  • The system should be reported to the Commission for the Protection of Privacy before implementation.

Privacy in the workplace

Privacy and monitoring
What are employees’ rights with regard to privacy and monitoring?

Although monitoring internet and email use is permitted, many limitations apply, as such controls may conflict with fundamental freedoms, as well as with norms based on the right to privacy.

The right to privacy – enshrined in both the Constitution and the European Convention on Human Rights – prohibits interference by any person in the privacy of others. The right to privacy is not absolute, which means that certain exceptions to this rule exist.

Among other obligations, the employer must ensure that:

  • the possibility of monitoring internet and email use is stipulated in a written document;
  • the monitoring is carried out for a clearly stipulated ‘higher’ cause;
  • the level of monitoring is proportionate to the intended purpose; and
  • the employees concerned are adequately informed about the monitoring.

Non-compliance with the multiple regulations regarding privacy and employee use of Internet and email can give rise to criminal penalties for employers. Employers can further incur liability for damage, compensation and evidence nullification.

Only an extensive, clear and accessible policy will allow an employer to monitor employees’ internet and email use.

To what extent can employers regulate off-duty conduct?

Off-duty conduct can be regulated within certain boundaries if it likely to affect the employer. However, this should be assessed on a case-by-case basis. Only an extensive, clear and accessible policy will allow an employer to enforce or penalise off-duty conduct.

Are there rules protecting social media passwords in the employment context and/or on employer monitoring of employee social media accounts?

No specific rules exist regarding social media, so the normal rules regarding privacy and the right to monitor will apply.

Trade secrets and restrictive covenants

Intellectual Property
Who owns IP rights created by employees during the course of their employment?

In Belgium, the ownership of employees’ creations depends on the IP right in each case.

Copyright
An employee creating copyright-protected work is considered to be the original author. Economic rights can be transferred to the employer if this is explicitly mentioned in the employment contract. However, moral rights are inalienable. Nevertheless, agreements concerning moral rights – such as the right to be named as the author – have been permitted by the Belgian courts. Hence, it can be agreed that the employer will be named as the author of a copyright-protected work.

Software rights
Software protection is a special form of copyright protection. Article XI.296 of the Code on Economic Law provides for the automatic transfer to the employer of the economic rights in software created by an employee.

Design rights
Design rights for designs made in the performance of an employment agreement belong to the employer under Article 3.8, Paragraph 1 of the Benelux Convention on Intellectual Property (Trademarks and Designs).

Patents
No legal provision transfers ownership of employees’ inventions to the employer (except for university staff). In the absence of an agreement, patent ownership will depend on the facts. Inventions which are made exclusively within the context and scope of the employee’s tasks are deemed to be transferred to the employer. It is common practice to ensure the transfer of ownership of a patentable invention to the employer. However, even if ownership of the patent belongs to the employer, the patent must mention the names of the inventors (eg, the employees).

Database rights
A sui generis database protection right is granted to the maker of a database (ie, the natural or legal person that takes the initiative and bears the risk and investment involved in the database’s creation). Consequently, it usually belongs to the employer. In addition, the layout or design of a database may qualify for copyright protection. Ownership of this copyright follows the general rules for ownership of copyright as set out above.

Restrictive covenants
What types of restrictive covenants are recognised and enforceable?

Non-compete clauses and clauses prohibiting the solicitation of employees and clients are recognised and enforceable.

Other restrictions are set out in the Law on Employment Contracts and are thus always applicable:

  • All employees are subject to Article 17 of the Law on Employment Contracts, which provides that – both in the course of employment and after its termination – an employee must refrain from revealing any trade or business secret or any secret of a personal or confidential nature that has come to his or her knowledge in the performance of his or her duties.
  • All employees must abstain from engaging in unfair competition. In case of violation of this obligation, the employer may sue for damages.
  • Article 309 of the Criminal Code also provides for specific criminal penalties where an employee reveals any technical secrets of his or her employer with fraudulent intent.

Non-compete
Are there any special rules on non-competes for particular classes of employee?

Employment contracts may contain a non-compete clause whereby, after leaving, the employee is prevented from carrying out similar activities – either on his or her own behalf or by entering into an employment contract with a competitor.

In order to be valid, a non-compete clause must comply with Article 65 of the Law on Employment Contracts, which stipulates that the clause must:

  • be in writing;
  • relate to similar activities;
  • remain applicable for not more than 12 months after the expiration or termination of the employment contract;
  • be geographically limited to the territory in which the employee can effectively compete with the employer; and
  • provide for payment by the employer to the employee of a sum equal to at least half the gross remuneration of the employee corresponding to the duration of the non-compete obligation, unless the employer waives the non-compete clause within 15 days of termination of employment. The reference period for the calculation of compensation is the last month preceding termination of employment.

A non-compete clause is null and void if the employee’s gross annual remuneration is less than €33,203 (as adjusted). If it is between €33,203 and €66,406, the non-compete clause may apply only to specific areas of work fixed by collective bargaining agreements concluded in a joint committee or the company itself. If the gross annual remuneration exceeds €66,406, the non-compete clause is valid unless otherwise stipulated by a collective bargaining agreement concluded in a joint committee or the company.

Where a non-compete obligation is violated, the employer can recoup from the employee an amount corresponding to twice the lump-sum compensation paid to the employee.

Non-compete clauses have no effect if the contract is terminated:

  • during the first six months of employment; or
  • after the first six months:
    • by the employer without serious breach on the part of the employee; or
    • by the employee for serious breach on the part of the employer.

Non-compete clauses encompassing a territory larger than Belgium and/or extending beyond 12 months are valid, provided the employer carries out its activities on an international scale or has its own research and development centre. Further, the employee must be entrusted with activities that enable him or her to acquire information about practices whose disclosure might be harmful to the employer. In such cases, a non-compete clause may remain applicable even if the employment contract is terminated during the first six months or by the employer without serious cause.

Specific non-compete clauses should be used for sales representatives.

Discipline and grievance procedures

Procedures
Are there specific laws on the procedures employers must follow with regard to discipline and grievance procedures?

No – these procedures should be outlined in the work rules according to applicable guidelines.

Industrial relations

Unions and layoffs
Is your country (or a particular area) known to be heavily unionised?

In Belgium, there exists both a ‘positive’ and a ‘negative’ freedom of association. Article 27 of the Constitution guarantees the freedom of association, while Article 1 of the Law of May 24 1921 on the freedom of association specifically provides that nobody can be forced to become or refrain from becoming a member of an organisation. It is estimated that nearly 60% of the active employee population in Belgium is affiliated with a trade union.

What are the rules on trade union recognition?

Not all trade unions or employee organisations are recognised as so-called ‘representative organisations’. The status of representative organisation confers specific privileges – mainly, the right to enter into collective bargaining agreements and nominate candidates for the social elections. In order to be qualified as a representative organisation, an employee organisation must:

  • be organised on an interprofessional and national scale;
  • be represented in the National Labour Council and the Central Economic Council; and
  • have at least 50,000 members.

All professional organisations which are a member of or affiliated with one of these interprofessional organisations are also considered representative employee organisations. Only the three main confederations (ie, of Christian, socialist and liberal trade unions) meet these criteria.

What are the rules on collective bargaining?

‘Collective bargaining agreements’ are defined as agreements entered into by one or more representative employee organisation and one or more representative employer organisations or employers, which determine the individual and collective relations between employers and employees and set forth the rights and obligations of the contracting parties.

Collective bargaining agreements may be entered into at various levels. National collective bargaining agreements are concluded in the National Labour Council. Industry-wide agreements are generally concluded in the competent joint committee or sub-committee. Collective bargaining agreements may also be entered into at company level.

Collective bargaining agreements must be registered with the Ministry of Employment and Labour. They will be accepted for registration only if they meet the formal requirements imposed by law.

Collective bargaining agreements are binding on:

  • the representative organisations which have entered into the agreements and the employers which are members of these organisations or have entered into the agreements themselves;
  • the representative organisations and the employers which have entered into the agreement and the employers who are members of such organisations;
  • employers which join a representative organisation which is bound by the agreement; and
  • all employees of an employer which is bound by the agreement (under Article 19 of the Act of December 5 1968).

For collective bargaining agreements entered into by the National Labour Council or by a joint committee or sub-committee thereof, the provisions on individual labour relations are also binding on all other employers and employees covered by the joint committee and by the terms of the agreement – unless their individual employment agreement contains written provisions which deviate from the collective bargaining agreement.

An employer which violates the provisions of a collective bargaining agreement which has been made generally binding by royal decree is liable to criminal penalties.

Termination

Notice
Are employers required to give notice of termination?

There are several ways to terminate an employment contract. It may come to an end by mutual agreement between the employer and the employee at any time (eg, during the notice period or when the contract is suspended), either with immediate effect or at a later date. Such termination is subject to no formalities. The employer may not exert pressure on the employee to agree to termination. Mutual termination of the employment agreement does not give rise to the payment of an indemnity. However, the employer is free to pay compensation.

The employment agreement may also come to an end at its expiration if the contract is for a fixed period or for a specific task. It may also be automatically terminated if either party cannot perform its obligations under the employment contract and the cause of such non-performance is permanent.

An employer dismissing an employee may either give him or her notice of termination (during which period the employee must continue to work) or terminate the contract immediately by paying a severance indemnity in lieu of notice. The employer may terminate the contract during the notice period by paying an indemnity equal to the salary which the employee would have received for the remainder of the notice period. An employee who resigns must also give notice to the employer or pay an indemnity in lieu of notice.

An indemnity in lieu of notice is due when the employer or employee terminates the employment contract without notice or with insufficient notice. At any time during the notice period, the terminating party may decide to pay an indemnity in lieu of notice.

An employment agreement can also be deemed to be terminated due to the unilateral modification of one of its essential elements.

Redundancies
What are the rules that govern redundancy procedures?

For individual dismissals, an employer which wishes to terminate the employment contract of one of its employees need not consult or obtain prior approval from the works council or any other regulating body or court, unless the employee has protected status.

Notice of termination may be given only in a written statement which specifies the start date and the duration of the notice period. If the contract is terminated by the employer, the statement must be sent by registered mail or served by a bailiff. If the employee resigns, he or she may give notice by registered mail, writ served by a bailiff or a simple letter handed to the employer. If notice is given by registered mail, the notification is deemed to be effective on the third working day following the date of mailing. For this purpose, Saturday is considered to be a working day.

There are no termination formalities when a contracting party decides to terminate an employment contract with immediate effect. However, it is common practice to confirm such termination by registered letter. In addition, where a severance indemnity is offered, it is advisable to specify the amount of the indemnity or the duration of the notice period in lieu of which the indemnity is paid.

Termination for serious cause
Either party may terminate an employment contract without notice and without paying an indemnity if grave misconduct is involved.

A contract may not be terminated for serious cause if the cause was known to the terminating party for more than three working days before termination. Further, the justification for terminating the contract without notice or before the expiry of its term must be notified to the other party within three working days of termination. To be valid, such notification may be made by registered mail, writ served by a bailiff or hand delivery of a written document to the other party. In order to avoid problems of proof, it is advisable to use one of the first two methods.

An employment contract can also be terminated for serious cause when the contract is suspended, during the notice period or during the probationary period.

Article 35 of the Law on Employment Contracts provides little explanation of what is meant by ‘serious cause’. It states only that it must be a fault that makes professional cooperation between the employer and the employee immediately and definitively impossible. The concept of serious cause is interpreted restrictively by the courts.

Are there particular rules for collective redundancies/mass layoffs?

Belgian labour law contains detailed rules governing the termination of employment contracts as a result of collective redundancy or plant closure. Although these are not included in the Law on Employment Contracts, the dismissal of several employees within a short period without the cessation of the employer’s main activities (or the activities of a division) may result in additional liabilities for the employer. In the event of collective redundancy, the employer must meet certain information and consultation obligations and pay a special indemnity. The Law of June 28 1966 applies to undertakings, including company divisions, which have employed at least 20 employees on average during the previous calendar year.

Protections
What protections do employees have on dismissal?

Some categories of employee enjoy special protection in case of dismissal and cannot be dismissed under the general rules described above. An employer wishing to dismiss a protected employee needs specific grounds to do so (or proof that the dismissal is unrelated to the protection status of the employee), and must follow special procedures.

The main categories of protected employee include members and non-elected candidates of the works council or the committee for prevention and protection in the workplace, trade union delegates, pregnant women, employees in time credit systems and employees who have filed a complaint for harassment. 

Courts/tribunals

Jurisdiction and procedure
Which tribunals or courts have jurisdiction to hear complaints?

Labour courts local to the place where the employment is executed have jurisdiction to hear complaints.

What is the procedure and typical timescale?

Depending on the court, it takes between a few months and two years before a case can be pleaded before the court. After the introduction of the case, a procedural calendar is agreed (or, in case of no agreement, determined by court) which determines the terms under which the exchange of trial briefs between parties should take place and a hearing date is set.

Appeals
What is the route for appeals?

Appeals are lodged before the labour courts of appeal.