The employment relationship

Country specific laws

What laws and regulations govern the employment relationship?

Belgian employment law is largely uncodified, with the exception of the Health and Safety Code and the Social Penal Code. Therefore, most employment law is laid down in separate federal acts and executive royal decrees, the most important of which is the Act on Employment Agreements of 3 July 1978.

Further, while the government has competence for most employment law matters, some have been delegated to the regions (ie, Brussels, Flanders and Wallonia), including international employment (eg, work permits for foreign citizens) and job placement services. Specifically, social partners (ie, trade unions and employers’ organisations) have competence to set out binding rules in national and sectoral collective bargaining agreements. These agreements are usually declared universally applicable. Therefore, national collective bargaining agreements are an important part of Belgian employment law. Finally, collective bargaining agreements can be concluded at the undertaking level and certain rules can also be set out in internal company rules. 

Who do these cover, including categories of worker?

Belgian employment law applies to employers and employees in the private sector. While some of this legislation applies to the public sector employees and contractors, the public sector generally has distinct rules. That said, Belgian employment law does not apply to independent contractors, with the exception of some general health and safety provisions.

Misclassification

Are there specific rules regarding employee/contractor classification?

The Act on Labour Relations of 27 December 2006 governs the misclassification of employees and contractors. This act provides for four criteria when assessing whether to classify an individual as an employee or contractor:

  • the true will of the parties (to be inferred from both the written agreement and the actual situation);
  • the contractor's freedom to organise their working time – specifically whether:
    • they can freely choose their work assignments and working hours;
    • they must provide a justification for illness;
    • they can choose to account for holidays; and
    • the employer has control over the individual’s use of time;
  • the free organisation of the work – specifically:
    • whether the individual can freely choose (and refuse) assignments;
    • the nature of the agreement;
    • reporting requirements;
    • the imposition of rules of conduct or objectives;
    • who pays the salary and who bears the costs; and
  • the possibility of hierarchical control or subordination – specifically:
    • can the employer impose penalties;
    • is there an established means of control;
    • the nature of reporting; and
    • the nature of control.

There are also neutral criteria that do not indicate how an individual should be classified, including the title of the agreement and whether the individual has registered with a social security institution, the Crossroads Bank for Enterprises or value added tax (the way in which income is declared for tax purposes).

Finally, special criteria have been introduced for certain sectors (eg, the construction, transport and cleaning).

Contracts

Must an employment contract be in writing?

There is no obligation to conclude a written employment contract; oral employment contracts can be valid. However, the following contracts must be in writing:

  • student contracts;
  • part-time contracts;
  • temporary contracts or contracts for a specific project;
  • home and telework contracts;
  • temporary agency contracts; and
  • replacement contracts.

Some specific clauses in the employment contract must also be in writing – for example, schooling and non-compete clauses.

Are any terms implied into employment contracts?

The most important implied term is that an employment contract will be concluded for an indefinite period unless specified otherwise.

Are mandatory arbitration/dispute resolution agreements enforceable?

Mandatory arbitration agreements or clauses are null and void. Workers can always bring a case before the labour courts.

How can employers make changes to existing employment agreements?

While employers can easily make changes in individual employment agreements, unilateral changes are not without risk. Small, logical or insignificant changes are allowed, but unilateral changes of essential elements in an employment contract can imply constructive dismissal. If this is the case, the employee has a right to dismissal compensation and they can file for a compensation for a manifestly unreasonable dismissal.

Foreign workers

Is a distinction drawn between local and foreign workers?

Foreign workers cannot be discriminated against as they are protected by the Racism Act 1981 and the General Discrimination Act 2007. Foreign workers should be treated equally in comparison with local workers. Of course, in order to be able to work, foreign nationals outside the European Economic Area and Switzerland must obtain a stay and work permit.