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The employment relationship
Country specific laws
What laws and regulations govern the employment relationship?
Three categories of rules and statutes govern the employment relationship.
The first set covers individual employment contracts between the employer and each employee. Although the parties are largely free to determine the contents of employment contracts, there are a number of mandatory rules. Most of these are contained in the Law on Employment Contracts.
The second set covers a wide spectrum of matters addressed in separate legislation. These rules usually constitute a minimum level of protection for each employee and are generally common to all employees. Collective bargaining agreements concluded at company or industry level may establish a higher level of protection.
The third set covers collective labour relations and governs the organisation of trade unions, representation of employees and mechanisms for collective bargaining.
Who do these cover, including categories of worker?
The Law on Employment Contracts has a wide scope. It covers most employment contracts and addresses a wide variety of issues relating to – among other things – the formation, duration, content, suspension and termination of employment contracts. It covers five categories of employee: blue-collar employees, white-collar employees, commercial representatives, employees working from home and students.
The second set of rules covers a wide spectrum of matters addressed in separate legislation, including maximum working hours, legal holidays, minimum remuneration and working conditions.
Are there specific rules regarding employee/contractor classification?
Under the Law of December 27 2006, the parties to an agreement are free to organise the manner in which they collaborate – namely, as independent parties (eg, self-employed workers) or through an employment contract. A continued and personal relationship of subordination of the worker towards the contracting partner distinguishes an employment contract from a contract with a self-employed worker.
In order to assess whether the choice of the parties is in line with the law and reality, and to qualify the contractual relationship for social security purposes, the law sets out four criteria:
- the parties’ will (ie, what has been agreed upon);
- the freedom (or absence thereof) of the individual to organise his or her working time;
- the freedom (or absence thereof) of the individual to organise his or her work; and
- the possibility (or impossibility) of performing hierarchic control over the individual concerned.
In some specific sectors (eg, construction, security, transportation and cleaning) additional and specific criteria are applicable.
Must an employment contract be in writing?
In general, the Law on Employment Contracts does not impose specific formalities for the formation of an employment contract. An agreement may be oral or even tacit. However, in order to avoid evidentiary problems if a conflict arises between the parties, an agreement is best executed in writing.
Not all employment contracts may be oral. The Law on Employment Contracts provides that the following types of contract must be executed in writing:
- contracts for a fixed period or for a specific project;
- part-time employment contracts;
- contracts for employees working from home/remotely; and
- replacement contracts.
When an employment contract is not in writing, it is deemed to have been concluded for an indefinite duration.
In addition, some clauses must be executed in writing in order to bind the parties.
Are any terms implied into employment contracts?
Some terms are embedded in the Law on Employment Contracts and other legislation and are thus always applicable to all employees (eg, relating to termination, obligations and rights of employees, trade or business secrets and unfair competition)
Are mandatory arbitration/dispute resolution agreements enforceable?
An arbitration clause cannot be included in an employment agreement for an employee earning less than €66,406 (as adjusted) gross per year. Only if the gross annual salary exceeds this amount and the employee is responsible for the daily management of the company or business unit can an arbitration clause be included and enforced.
How can employers make changes to existing employment agreements?
As a general rule, neither employers nor employees can modify working conditions unilaterally. Contractual clauses which entitle the employer to unilaterally modify contractual provisions are null and void. The courts have held that the unilateral modification of working conditions will amount to illegal termination, where:
- the modification concerns either an essential element of the employment contract or a working condition that has been expressly agreed. Traditionally, essential elements include:
- place of work;
- duration and timetable of work;
- function and responsibilities; and
- the modification is unilateral. A modification becomes bilateral if the employee accepts the modification. Such acceptance may be express or result from the conduct of the employee. In this respect, the courts usually grant the employee a short period during which he or she may decide whether to accept such modification; and
- the modification is definitive.
However, within certain limits, the courts have accepted that employment contracts may be modified unilaterally by the employer if the changes are:
- justifiable for economic reasons and the impact of such changes is not considered significant; or
- the employee is duly compensated.
Is a distinction drawn between local and foreign workers?
Non-European Economic Area (EEA) nationals (and workers from some new EU member states) exercising an activity as an employee or self-employed worker in Belgium must possess a visa and work permit (for employees) or professional card (for the self-employed). In principle, all EEA nationals are free to work in Belgium.
Depending on the circumstances and personal situation of the person concerned, certain exceptions (eg, short-term stay for business meetings) may apply.
Foreign employers who temporarily assign personnel to Belgium must register these employees with the Belgian social security authorities before the start of their activities in Belgium (using the LIMOSA system). There are certain exemptions from this requirement, mainly depending on the reason for working in Belgium and the duration of the stay.
During the employment or related activities in Belgium:
- the Belgian mandatory employment rules must be respected (eg, working time, minimum remuneration and termination rules);
- all formalities must be complied with (eg, the DIMONA/LIMOSA system, employment contract and work rules); and
- all affiliations must be in order (eg, social security, tax authorities and labour accident insurance).
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