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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.
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