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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.
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