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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.
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.
Wages and working time
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.
What payroll and payment records must be maintained?
Employers must maintain records of both payslips and individual accounts.
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