Introduction
Can all employees request a form of employment that is more predictable and secure?
Is there a limit to the types of more predictable and secure employment that can be requested?
Is the employee free to choose how they will request a new form of employment?
Is there a deadline for the employer to reply to the employee's request?
Is the employer obliged to agree to this request? Are there any conditions for a refusal?
Is the employee protected against negative actions by the employer after filing their request?
Is the employer allowed to postpone taking up the new form of requested employment?
Must the employer accept the request as is?
If the employer accepts the request, is the employer free to decide on the modalities of the form of employment?
Can an employee file a new request after a refusal?


Introduction

The EU Directive on Transparent and Predictable Working Conditions obliges the member states to guarantee an improvement in employment conditions by enforcing more transparent and predictable employment conditions and an increase in flexibility in the labour market. Belgium has finally transposed this EU Directive with not one but two legal instruments:

  • the Act of 7 October 2022; and
  • national collective bargaining agreement (CBA) No. 161 of 27 September 2022.

This article, part of a series on the implementation of the EU Directive on Transparent and Predictable Working Conditions in Belgium, explains the right of employees to request a form of employment that is more predictable and secure, which was established in CBA No. 161 and entered into force on 1 October 2022. This new employee right is explained using the following 10 questions and answers.

Can all employees request a form of employment that is more predictable and secure?

No. Employees only have the right to request a form of employment that is more predictable and secure if they:

  • have an employment contract or are an interim worker;
  • have at least six months' seniority (ie, length of service) with the same employer or user; and
  • perform more than three hours of work per week on average within a reference period of four consecutive weeks.

Moreover, for an employee to be eligible for a form of employment that is more predictable and secure, the following conditions must be met:

  • a type of work with more predictable and secure working conditions must be available in the company;
  • the employee must have the necessary qualifications and competences for this type of employment; and
  • the employee must accept the suggested working time arrangement and salary conditions.

These last three conditions can be modified by a sector-level or company-level CBA, by a company agreement with the trade union delegation or the employees, or by mutual agreement between the employer and the employee.

Is there a limit to the types of more predictable and secure employment that can be requested?

No. However, the CBA provides in its commentary that, for example, the following employment forms could be considered as being more predictable and secure and can be requested by the employee:

  • for employees with a fixed-term employment contract – an indefinite-term employment contract;
  • for part-time employees – a full-time employment contract or an employment contract with a higher weekly working time;
  • for employees with variable working schedules – fixed working schedules; and
  • for interim workers with daily contracts – weekly or monthly interim contracts.

However, this list is not exhaustive, and the employee could propose a different form of employment that they consider predictable and secure, and more appropriate.

Is the employee free to choose how they will request a new form of employment?

No. The employee must provide the employer with a written request. Such a written request must:

  • include an explicit reference to CBA No. 161;
  • state the exact type of more predictable and secure employment preferred by the employee;
  • state the starting date preference; and
  • be filed at least three months prior to the date that they would like this type of employment to start. However, this term can be deviated from by sectoral or company CBA, company-level or individual agreement.

However, this term can be deviated from by sectoral or company CBA, company-level or individual agreement.

The employee must send the written request by registered mail or electronically with a proof of receipt from the employer or they should hand it over personally to the employer, asking the employer to sign a double copy as a proof of receipt.

Is there a deadline for the employer to reply to the employee's request?

Yes. The employer should answer the employee's request within:

  • one month from the date of the employee's request for an employer with more than 20 employees; or
  • two months from the date of the employee's request for an employer with fewer than 20 employees.

Is the employer obliged to agree to this request? Are there any conditions for a refusal?

No. The employer can refuse the employee's request after considering the company's needs as well as the employee's needs, but the employer's refusal must be justified in writing (eg, in a letter or by email). For example, an employer's refusal could be based on one of the following reasons:

  • the requested type of employment is not available within the company;
  • the employee does not have the necessary qualifications or competences; or
  • the company's operational capacity does not allow for such a form of employment.

As an alternative, the employer could make a counterproposal to the employee's request or postpone the more predictable and secure form of employment that has been requested.

Is the employee protected against negative actions by the employer after filing their request?

Yes. The employee is protected against:

  • negative action by the employer (eg, a demotion, a change of function, a salary reduction, a negative evaluation); and
  • dismissal by the employer (including preparatory actions for such dismissal).

The protection above applies from the date of the employee's request until two months after the employer's refusal or the new form of employment enters into force.

Nonetheless, if the employer takes any negative action towards the employee, then the employer could be held liable to pay damages equal to two-to-three months' salary. If the employer dismisses the employee, or take preparatory action for such a dismissal, then the employer could be held liable to pay damages equal to four-to-six months' salary. Of course, this will only be the case if it is presumed (by facts invoked by the employee) that these negative actions or (the preparation of) the dismissal were based on the employee's request for a form of employment that would have been more predictable and secure, without the employer being able to prove otherwise.

If the employee is dismissed or treated negatively for other reasons, then the penalties above will not apply.

Is the employer allowed to postpone taking up the new form of requested employment?

Yes. The employer can postpone the requested more predictable and secure form of employment, provided that there are reasons linked to the good operation of the company's business that justify such a postponement. The employer should justify such a decision for postponing the request by specifying in writing the issues linked to an immediate acceptance.

However, this postponement cannot result in the employee's taking-up of the more predictable and secure form of employment becoming impossible in practice.

Must the employer accept the request as is?

No. Instead of accepting or refusing the request as is, the employer can decide to make a counterproposal to the employee, which may contain an adjusted form of more predictable and secure employment. For example, if an employee with part-time employment (of 50%) asks for a full-time employment (ie, 100%), then the employer could suggest a part-time employment equal to 80% of a full-time employment instead, because no full-time position is available within the company at that moment.

If the employer accepts the request, is the employer free to decide on the modalities of the form of employment?

No. After the employer has accepted the employee's request, they both should work out an agreement regarding the modalities of the new form of more predictable and secure employment. In this regard, the parties should, among other things, discuss the working time arrangement as well as the salary conditions.

Can an employee file a new request after a refusal?

Yes, but the employee can only file a request once in every 12-month period. However, if the employer has not responded to the last request within the agreed term (ie, within one or two months), then the employee can repeat their request without having to respect the 12-month waiting period.

For further information on this topic please contact Esther Soetens or Annabel Coopman at ALTIUS by telephone (+32 2 426 1414) or email (esther.soetens@altius.com or [email protected]). The ALTIUS website can be accessed at www.altius.com.