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Which issues would you most highlight to someone new to your country?
Local language requirement There is a local language requirement depending on where the company carries out its business operations. All communication with employees must be in the correct social language, such as:
- French for companies located in Wallonia (and German for those located in a small area of Wallonia);
- French or Dutch depending on the choice of the employee for companies located in Brussels; and
- Dutch for companies located in Flanders.
Documents drafted in the incorrect social language may be considered null and void, with the understanding that this nullity cannot have adverse consequences for employees.
Salary instalments Most employee salaries are paid in 13.92 instalments per year, rather than 12 instalments per year. On top of the salary that an employee receives during annual leave, he or she is also entitled to double holiday pay (92% of one month’s salary) payable between May and June. This is paid directly by the employer to white-collar employees or through a holiday fund for blue-collar employees. Most sectors also provide for an end-of-year premium (the so-called ‘13th month’) paid at the end of December. This generally equals one month’s salary.
What do you consider unique to those doing business in your country?
The following aspects are unique in Belgium:
- Termination at will – the contract can be terminated at any time.
- Joint labour committee – every company resorts under a different joint labour committee, in which multiple collective bargaining agreements are concluded.
- Distinction between blue and white-collar employees – there will be a phased abolishment of this distinction.
- Expensive social security system – this comprises approximately 35% employer contributions and 13.07% employee contributions. Contributions must be withheld at source by the employer and paid to the National Office for Social Security. Employer contributions are calculated on top of the gross salary, and employee contributions are deducted at source from the gross salary. If the employer fails to make the appropriate payments in time, it will be solely liable for any deficit or inaccuracy.
- Annual leave – annual leave and payment for annual leave are accrued in the calendar year preceding the calendar year in which the annual leave is taken. In case of a change of employer, the employee will receive departure holiday pay from the previous employer, covering the annual leave accrued but not taken. Consequently, the new employer need not pay annual leave during the first calendar year, as this is covered by the departure holiday pay paid by the previous employer.
- Automatic indexation of salaries – in order to protect employees from inflation and preserve their purchasing power, salaries are subject to automatic indexation. The mechanism has been set out in law; however, the modalities differ between sectors.
- Maximum margin for salary increases – in order for Belgium to compete with surrounding countries, a maximum margin for salary increases is set every two years. At present, the maximum salary increase limit is set at 1.1%. The joint labour committees determine the manner in which companies may grant this percentage to their employees.
- Public policy – the employment relationship is strictly regulated and the parties’ freedom of contract is limited by complex statutory rules, regulations and legally enforceable collective agreements, from which little contractual derogation is possible. Most of these rules are considered to be matters of public policy.
Is there any general advice you would give in the employment area?
- consider language requirements when drafting contracts and bonus plans; and
- specify whether the end-of-year premium and double holiday pay are included when an annual gross salary, rather than monthly gross salary, is mentioned in the employment contract.
Emerging issues/hot topics/proposals for reform
Are there any noteworthy proposals for reform in your jurisdiction?
More possibilities for night and Sunday work are emerging in the e-commerce sector, in order to compete with surrounding countries.
What are the emerging trends in employment law in your jurisdiction?
As a result of the significant increase in psychosocial risks at work (eg, burn out, stress and harassment), the prevention of such risks has become a key focus for the Belgian authorities. Therefore, recent measures have been taken to promote well-being at work. However, employers have the final responsibility for the application of these new provisions.
The employment relationship
Country specific laws
What laws and regulations govern the employment relationship?
Belgium has clarified the hierarchical status of the various sources of employment by recording its order of precedence in the Collective Bargaining Agreements Act 1968. The order of hierarchy is as follows:
- international and EU law;
- the Constitution;
- the mandatory rules of statutes;
- the terms of collective agreements at national or sector level that are:
- declared to be binding by Royal Decree; or
- not declared to be binding by Royal Decree but are signed by the employer or employer’s organisation;
- the terms of collective bargaining agreements concluded at company level;
- the terms of individual written employment contracts;
- the terms of collective agreements at sector level that are neither declared to be binding by Royal Decree nor signed by the employer or employer’s organisation;
- work regulations;
- the supplementary provisions of law;
- verbal individual employment contracts; and
- custom and practice.
Who do these cover, including categories of worker?
These laws and regulations cover all categories of employee, including blue and white-collar employees who are employed by private companies.
Are there specific rules regarding employee/contractor classification?
In principle, the parties are free to determine the nature of their relationship. However, if the execution of the agreement concluded between the parties is irreconcilable with the qualification given by the parties, the agreement can be re-characterised and thereby subjected to another social security regime.
Four general criteria have been determined for all sectors of industry to evaluate the nature of the employment relationship. These criteria are:
- the will of the parties;
- the freedom to organise working time;
- the freedom to organise work; and
- the possibility for the company to exercise hierarchical control.
A rebuttable presumption has been introduced in regard to the existence of employment relationships in the fraud-sensitive sectors of:
- transport; and
Must an employment contract be in writing?
A written contract is not mandatory for an indefinite term of employment. However, for the purposes of evidence and avoiding potential disputes, signing an employment contract is strongly recommended.
The employment contracts that must be in writing are:
- definite-term contracts;
- part-time contracts;
- student agreements;
- contracts for temporary agency workers;
- home-based and telework contracts; and
- replacement contracts.
Some restrictive covenants must also be in writing in order to be enforceable.
Are any terms implied into employment contracts?
In principle, the parties to an employment contract are free to agree on the terms of the relationship. However, such freedom is limited by the framework of statutory rules and regulations, and the terms of collective agreements.
The terms and conditions of statutes and collective agreements provide minimum rights which cannot be waived or denied. These relate to issues involving:
- termination process;
- annual leave; and
- health and safety.
Any provisions aimed at reducing these rights or benefits will be void and unenforceable.
Are mandatory arbitration/dispute resolution agreements enforceable?
Belgian legislation prohibits the parties from committing to submit future disputes linked to the employment contract to arbitration. However, this prohibition is exempt when:
- the dispute has already arisen; or
- the employee has an annual gross salary exceeding €66,944 and is charged with the daily management of the company or part of the company.
How can employers make changes to existing employment agreements?
The essential terms and conditions of the employment relationship can be amended by mutual consent only.
A unilateral amendment of the employment condition is possible only if the amendments concern a non-essential employment condition or are extremely limited. The employee’s salary package, the place of work and the employee’s role have been classified by case law as essential employment conditions.
Unilaterally imposing a change may lead to the employee invoking the termination of the contract by the employer by stating that the unilateral amendment should be considered as the expression of the employer’s will to terminate with a claim for payment of an indemnity in lieu of notice and, in some cases, compensation for manifestly unreasonable dismissal.
The right to invoke termination by the employer may be waived if the employee continues to work beyond a reasonable period after the imposed change, as he or she is deemed to have accepted the unilateral change impliedly. A ‘reasonable’ period will depend on the circumstances of the case.
Is a distinction drawn between local and foreign workers?
Depending on the employee’s nationality and the circumstances of the case, an employee may need to obtain a work permit, residence permit or both. For European Economic Area nationals, no work permit or visa is required. Instead, a notification of stay or a declaration of registration must be made to the relevant authority depending on the length of stay.
What are the requirements relating to advertising positions?
The recruitment and selection process is regulated by the Collective Bargaining Agreement 38 concerning recruitment and selection of employees, which has been concluded at national level.
The advertising and recruitment process must be conducted pursuant to the non-discrimination rules. Therefore, unless it is required for the function or nature of the tasks, no reference to gender can be made in the advertisement or requirements of the role.
What can employers do with regard to background checks and inquiries in relation to the following:
(a) Criminal records?
Criminal background checks are uncommon. In Belgium, the data is not publicly available. Only the data subject can request an extract of the criminal record from the local municipality.
Employers cannot request this document from the data subject as it contains criminal data which cannot be processed under the Privacy Act 1992 unless required by law (eg, where the employee is a security agent or lawyer).
Despite this, the local data protection authority (the privacy commission) accepts that employers may ask the data subject to show an extract of the criminal record, if relevant to the function of the role and with the employee’s approval, provided that they do not register the data.
(b) Medical history?
Medical checks are prohibited unless prescribed by law. A medical check is mandatory if the employee has a surveillance, high-risk or safety role in the company.
(c) Drug screening?
Employers can include a procedure in the work regulations in accordance with the National Collective Bargaining Agreement 100 regarding the use of alcohol and drugs at work, enabling them to test employees under strict conditions. However, employers can introduce a procedure for breath tests or psychomotor tests only. Blood, urine and other medical tests are prohibited.
(d) Credit checks?
Credit checks can be done only if relevant to the employee’s role and if the employee is properly informed in advance. In practice, these checks are difficult, as the data is not publicly available.
(e) Immigration status?
Immigration status checks can be done only if relevant or necessary to the employee’s role, and if the employee is properly informed in advance.
(f) Social media?
Information that is accessible to everyone is considered part of the public domain and may be checked. Where such information is shared with a limited group of people, privacy regulations may apply.
Wages and working time
Is there a national minimum wage and, if so, what is it?
Minimum wages are generally fixed at sector level in collective bargaining agreements.
Where no minimum wage has been fixed, the National Collective Bargaining Agreement 43 will apply. This determines the minimum monthly salaries for full-time roles (as of June 1 2017) as:
- €1,562.59 for employees over 18 years old;
- €1,604.06 for employees over 19 years old and with six months’ seniority; and
- €1,622.48 for employees over 20 years old and with 12 months’ seniority.
Are there restrictions on working hours?
Nationally, the weekly working time is fixed at 38 hours based on a maximum of eight hours per day. However, many sectors have reduced the weekly working time.
In exceptional cases, employees may work up to 11 hours per day and 50 hours per week, provided that specific conditions are met.
Hours and overtime
What are the requirements for meal and rest breaks?
All employees have the right to an interruption of work of at least 11 consecutive hours per 24 hours. Employees are entitled to a 15-minute break by the time that their performance has reached six hours at the latest. Breaks are not generally considered to be working time. Special modalities of the break can be agreed on by the sector or the company.
How should overtime be calculated?
In general, ‘overtime’ is defined as the number of hours worked in excess of the normal daily or weekly limits, which are eight hours per day or 38 hours per week, unless other limits have been set at sector level or flexible working schedules have been introduced.
In the event of flexible working schedules, employers may increase the daily working hours by two hours with a maximum of nine hours per day, and the weekly working hours by five hours with a maximum of 43 hours per week. These are so-called ‘additional’ hours for which no overtime payment is due. Only the hours performed on top of these limits are considered as overtime.
The compensation for overtime is twofold. The employee is entitled to paid recuperation leave and an overtime premium of:
- 50% for overtime performed on weekdays, including Saturdays; and
- 100% for overtime performed on Sundays, bank holidays and days replacing bank holidays.
What exemptions are there from overtime?
Some employee categories are exempt from the working time regulation. As such, these employees may be required to work more than 38 hours per week, without being entitled to claim compensation for overtime.
The exempt categories are:
- employees holding a position of trust and confidence, a managerial role or both.
- employees working at home or conducting telework; and
- sales representatives and mobile workers.
Is there a minimum paid holiday entitlement?
Employees are entitled to paid statutory holiday which is based on the number of days worked (or equalled) in the year preceding the year in which the holiday is taken.
An employee working five days per week over a full 12-month period for one or several employers during the previous calendar year is entitled to 20 days’ paid holiday.
An employee who has not completed a full 12 months’ work in the previous calendar year will be entitled to proportionately reduced paid holiday.
What are the rules applicable to final pay and deductions from wages?
Employers must provide employees with a monthly payslip, detailing salary and all deductions made in respect of tax and social security contributions. The employee social security contributions (13.07% of the gross salary) must be withheld by the employer at source on all wages and salaries paid or attributed to employees working in Belgium. These contributions, together with the employer’s social security contributions (approximately 35% on top of the gross salary), must be paid to the social security administration on a quarterly basis.
A similar system operates for income tax. Employers must deduct income tax at source from the taxable net amount (the gross salary of which social security contributions have been deducted) at the appropriate rate.
What payroll and payment records must be maintained?
The social documents (eg, records of working time, payslips, individual accounts, personnel register and multifunctional declaration) must be kept for five years.
Discrimination, harassment & family leave
What is the position in relation to:
Direct or indirect discrimination based on age is prohibited. However, a difference in treatment based on age does not constitute discrimination when the difference is objectively and reasonably justified by a legitimate aim – including a legitimate employment policy, the labour market and other comparable legitimate aims – and when the means to achieve that aim are appropriate and necessary.
Direct or indirect discrimination based on race is prohibited. This includes discrimination on the grounds of:
- skin colour;
- ancestry; and
- national or ethnic origin.
Direct or indirect treatment based on race cannot be made when recruiting, employing or dismissing an employee, unless it can be objectively justified by a legitimate aim and the means to achieve that aim are appropriate and necessary.
Direct or indirect discrimination based on disability is prohibited. Different treatment is allowed only when it can be objectively justified by a legitimate aim and the means to achieve that aim are appropriate and necessary.
Direct or indirect discrimination based on gender is prohibited. Different treatment is allowed only when it can be objectively justified by a legitimate aim and the means to achieve that aim are appropriate and necessary.
(e) Sexual orientation?
Direct or indirect discrimination based on sexual orientation is prohibited. Different treatment is allowed only when it can be objectively justified by a legitimate aim and the means to achieve that aim are appropriate and necessary.
Direct or indirect discrimination based on religion is prohibited. Different treatment is allowed only when it can be objectively justified by a legitimate aim and the means to achieve that aim are appropriate and necessary.
Direct or indirect discrimination based on an employee’s present or future state of health is prohibited. Different treatment is allowed only when it can be objectively justified by a legitimate aim and the means to achieve that aim are appropriate and necessary.
Direct or indirect discrimination on the following grounds is also prohibited:
- civil status;
- place of birth;
- capital (financial means);
- political conviction;
- physical characteristics;
- social status or background; and
- trade union membership.
Family and medical leave
What is the position in relation to family and medical leave?
Maternity leave Maternity leave is generally 15 weeks for employees. A minimum of nine weeks’ maternity leave can be taken after the birth of a baby and a maximum of six weeks’ leave can be taken before the expected date of birth. In any event, employees must commence maternity leave at least seven days before the expected date of birth.
Statutory maternity pay is financed by the social security system, rather than the employer.
Employees are protected against dismissal from the moment that the employer has been informed of the pregnancy until one month after the end of the maternity leave.
Paternity leave Employees are entitled to 10 days’ paternity leave which must be taken within four months from the date of birth. The 10 days need not be taken at once and may be spread over the four-month period. The first three days are paid by the employer and the following days are paid by the social security system.
Employees are protected against dismissal from the date of notification of the paternity leave until three months after the notification.
Parental leave Employees also have the right to parental leave for a maximum of four months, to be taken before the child reaches the age of 12 (or 21 in cases of disability). This is financed through the social security system.
Employers can postpone an employee’s right to take parental leave by six months, provided that there are valid business reasons to justify the postponement.
Employees are protected against dismissal from the date of notification of the parental leave until three months after the end of the parental leave.
Time credit Employees working in the private sector have the right to so-called ‘time credit’. This constitutes a reduction of their working time for reasons including:
· taking care of children younger than eight years old;
· issuing palliative care;
· taking care of a sick family member;
· taking care of a handicapped child younger than 21 years old; and
· following training.
An employee may be entitled to full-time time credit, half-time time credit and 20% time credit for a maximum period of 51 months (36 months for educational time credit).
This is financed through the social security system.
Employees are protected against dismissal from the date of request of the time credit until three months after the end of the leave.
Sick leave Employees who are ill or have suffered a non-work-related accident must inform their employer as soon as possible and produce a medical certificate from their doctor within two working days.
Employees who are absent from work through illness or injury will receive sick pay from their employer for seven or 30 days, and statutory sick pay subsequently.
It is not prohibited to terminate the employment contract during sickness; however, it is prohibited to terminate the contract because of the sickness.
What is the position in relation to harassment?
The prevention of psychosocial risks and promotion of well-being at work has become a focus point for the Belgian authorities. The Welfare Act 1996 is the fundamental act regarding this matter and creates the framework for the implementing decrees. These are bundled in the Code on Welfare at Work.
The code covers not only health and safety, but all aspects of welfare at work in general, including:
- psychosocial aspects (eg, stress and burn out);
- occupational hygiene;
- prevention of occupational accidents and illnesses; and
- moral and sexual harassment.
Employers must take the necessary measures to promote the welfare of employees at work. Failure to take accurate measures or acting in violation of the provisions can lead to the company being subject to an administrative fine, criminal fine, imprisonment or a combination thereof.
What is the position in relation to whistleblowing?
Belgian legislation does not regulate whistleblowing. However, employers can include such rules in the work regulations. The whistleblowing procedure should be the last resort for employees where the legal procedures (eg, complaints in the context of a harassment procedure) would bring insufficient relief.
Employees cannot be forced to report. Anonymous reports should be avoided and, contrary to the legal procedures, the employee is not protected against dismissal.
Privacy in the workplace
Privacy and monitoring
What are employees’ rights with regard to privacy and monitoring?
The Law of December 8 1992 on the protection of privacy in relation to the processing of personal data also relates to employee data.
Employers are entitled to control the work of an employee. However, this control is limited based on finality, proportionality and transparency. The employee’s privacy should also be respected. Employers must inform employees about all aspects of data monitoring. The employee is entitled to access such data and have it corrected.
In May 2018 the General Data Protection Regulation will enter into force. However, the Belgian legislature is yet to introduce implementing legislation in this regard. The regulation introduces the right to be forgotten.
To what extent can employers regulate off-duty conduct?
Pursuant to Article 17 of the Employment Contracts Act, employees must – among other things – avoid any actions or behaviours that could harm the employer. Therefore, a company can establish guidelines regarding the conduct of its employees. However, these guidelines must be mentioned in the work regulations in order to be enforceable.
Are there rules protecting social media passwords in the employment context and/or on employer monitoring of employee social media accounts?
There are no specific rules regarding social media.
In general, employers are entitled to control the work of an employee during the employment relationship. This is limited by the obligation to respect telecoms secrecy.
The work regulations should include a policy taking into account:
- the Electronic Communication Act;
- the National Collective Bargaining Agreement 81 on the protection of privacy of employees using electronic networks of communication; and
- the Privacy Act.
Trade secrets and restrictive covenants
Who owns IP rights created by employees during the course of their employment?
Employers generally acquire the IP rights in inventions made by employees during the course of employment when the employee is engaged for the purpose of, among other things, creating inventions. However, the moral rights in relation to the invention remain with the employee.
Case law is unclear regarding the legal rights in inventions made by employees in the course of employment where the discovery of inventions does not form part of the employee’s responsibilities under his or her employment contract, whether express or implied.
What types of restrictive covenants are recognised and enforceable?
Restrictive covenants in the form of non-solicitation clauses (for employees and clients) and non-compete clauses are recognised, provided that they meet certain criteria.
Are there any special rules on non-competes for particular classes of employee?
Yes, distinction must be made between a non-compete clause for employees with an annual gross salary exceeding €68,361 (or €34,180 if provided in a sector-level collective bargaining agreement) and sales representatives.
For these employees, the non-compete clauses must be agreed in writing and are valid only if they:
- are limited to activities that are similar to those performed by the employee;
- are limited to a defined geographical area which, in principle, may not exceed Belgian territory unless in regard to the employee’s international activity, which may be outside of Belgium;
- are concluded for a maximum of 12 months after termination (24 months in regard to international activity); and
- provide compensation to the employee equalling at least 50% of the salary and benefits that he or she would have earned in employment during the timeframe of the non-compete.
For sales representatives, other rules apply and the clause need not provide for compensation. However, it creates a refutable presumption that the sales representative brought clients to the company, which in turn creates an entitlement to client indemnity.
Discipline and grievance procedures
Are there specific laws on the procedures employers must follow with regard to discipline and grievance procedures?
The law stipulates the manner in which disciplinary actions can be taken. However, there are no specific laws on grievance procedures (excluding in the context of harassment at work, where a specific procedure must be followed).
Disciplinary penalties must be included in the work regulations in order to be imposed. The types of penalty are:
- moral (eg, warning letters, oral warnings and a note in the employee’s file); and
- pecuniary (eg, fines and temporary suspension of the employee).
The penalty must be notified to the employee on the first working day following acknowledgment of the alleged action. The employer must also include the penalty in a specific register.
Employers can install grievance procedures other than the legally foreseen harassment procedure. In order to be enforceable, they must be included in the work regulations.
Unions and layoffs
Is your country (or a particular area) known to be heavily unionised?
The representative trade unions in Belgium are:
- Christian unions;
- social unions; and
- liberal unions.
Approximately 60% of employees are affiliated to one of these unions.
What are the rules on trade union recognition?
A union delegation must be established in a company when requested by a certain number of employees (in most cases, at least 20). The procedure is detailed in a sector-level collective bargaining agreement.
What are the rules on collective bargaining?
Collective bargaining agreements can be concluded on a:
- national level (applicable to all companies);
- (sub)sector level (applicable to the sector); or
- company level.
From the moment that a company employs one employee in Belgium it automatically resorts under a specific sector (a joint labour committee). The company must respect the collective bargaining agreements concluded in that committee.
Are employers required to give notice of termination?
Excluding termination for serious cause, employers can terminate an employment contract with a notice to be performed or by payment of an indemnity in lieu of notice.
If an employer wishes to terminate the employment relationship with the performance of a notice period, during which the employee must continue to perform his or her tasks, the notice must be given subject to a strict procedure. The letter must:
- be sent by registered mail or bailiff;
- be drafted in the correct language; and
- mention the date, the decision to terminate the employment with a notice period and the duration and start of the notice.
If the employer wishes to terminate the employment relationship with immediate effect, no specific legal formalities are involved.
What are the rules that govern redundancy procedures?
Belgian law does not recognise the concept of redundancy. Where a role would become redundant, the normal termination rules should be followed.
Are there particular rules for collective redundancies/mass layoffs?
Yes. In cases of collective dismissal, a specific procedure must be followed.
A ‘collective dismissal’ is defined as a mass lay-off on technical or economic grounds involving the dismissal over a 60-day period of at least:
- 30 employees for companies with more than 300 employees;
- 10% of the workforce for companies with more than 100 but fewer than 300 employees; or
- 10 employees for companies comprising between 20 and 100 employees.
An employer must first communicate its intention to proceed with a collective dismissal, followed by an information and consultation procedure, before being able to confirm the intention and proceed with the dismissal.
What protections do employees have on dismissal?
Employees that benefit from specific protection against dismissal are those who:
- are pregnant;
- are entitled to breastfeeding breaks;
- benefit from paternal leave;
- have remarked on the work regulations;
- have filed a complaint or procedure before the courts regarding the equal treatment of men and women;
- are on political leave;
- are threatened by new technologies;
- are on a career break;
- are on thematic leave (eg, palliative care and child care);
- benefit from time credit;
- are entitled to parental leave;
- are union representatives;
- are a (candidate) member for the works council or committee for protection and prevention in the workplace;
- work as a prevention adviser;
- have filed a complaint based on the Anti-discrimination Law 2007;
- have filed a complaint based on the Bullying Law 2007; or
- have filed a formal complaint regarding moral or sexual harassment, violence or psychosocial risks.
These employees may be terminated for reasons unrelated to their specific situation only. In some cases, specific procedures must be followed in order for the company to proceed with the termination of the employment contract.
Jurisdiction and procedure
Which tribunals or courts have jurisdiction to hear complaints?
The labour tribunals and labour courts have exclusive jurisdiction to deal with disputes resulting from:
- an employment agreement;
- the application of collective agreements; and
- social security disputes (eg, occupational accidents, occupational diseases and employers’ obligations concerning unemployment, pension, illness and invalidity).
The labour tribunals and courts are not competent for disputes between employers and trade unions, in which case the first-instance court is competent.
What is the procedure and typical timescale?
Employees must serve a writ of summons to bring a case before the courts. The case is then set for an introductory court hearing.
During the introductory hearing, the parties will provide the court with a calendar establishing the dates on which to file their written submissions (ie, their arguments in the case). Once all submissions and exhibits have been exchanged, a hearing for pleadings will be organised. The court must pronounce a judgment within one month.
The period between the writ of summons and the judgment is approximately one year.
What is the route for appeals?
Losing parties may lodge an appeal with the labour court which must be concluded within one month of the notification of the judgment. During the appeal, all former arguments and new arguments will be examined. The party that did not lodge the appeal may also cross-appeal.
At the final stage, the losing party may file an appeal with the Supreme Court. The court will not examine the facts of the case, but rather will examine the legal aspects of the lower court decision. If the Supreme Court finds the contested decision illegal, the case will be referred to another labour court for reconsideration.