1 Terms and Conditions of Employment

1.1 What are the main sources of employment law?

The Belgian federal parliament governs employment law. Employer/employee relations are mainly governed by labour law, collective bargaining agreements (CBAs) (please see question 1.4), work regulations (company level) and individual employment contracts. Their main aim is to define employees' and employers' rights and obligations. They lay down rules on matters such as hiring and dismissing employees, pay protection, working time, work conditions, minimum holidays and equal pay for men and women.

1.2 What types of worker are protected by employment law? How are different types of worker distinguished?

Employment law protects workers with an employment agreement, not independent contractors.

Employees in Belgium are workers performing manual work, so-called blue-collar workers or workers performing intellectual work, so-called white-collar workers. This distinction is currently under huge debate in Belgium.

Besides this distinction, different rules apply for sales representatives, students, homeworkers and house servants.

1.3 Do contracts of employment have to be in writing? If not, do employees have to be provided with specific information in writing?

Written employment contracts are only mandatory for specific contracts, such as (a) fixed-term contracts, (b) contracts for the completion of a specific task, (c) part-time contracts, (d) student contracts, etc.

It is, however, always advisable to draft a written contract to avoid evidential problems.

Some clauses, such as those relating to a trial period or non-compete agreement are only valid if set out in writing.

1.4 Are any terms implied into contracts of employment?

The employment relationship is not solely governed by the express terms in an employment contract. The employment conditions that are set out in statutes or CBAs are automatically implied in the contract. Other sources of law, such as work regulations and customs or practices, have an impact on the employment relationship.

1.5 Are any minimum employment terms and conditions set down by law that employers have to observe?

Yes, all labour law statutes provide for minimum employment terms.

The main statutes that provide minimum terms and conditions in employment are:

  • Work Regulations Act 1965.
  • Remuneration Protection Act 1965.
  • Working Time Act 1971.
  • Annual Leave Act 1971.
  • Public Holidays Act 1974.
  • Employment Contracts Act 1978.
  • Social Documents Act 1978.
  • Temporary Work Agencies Act 1987.
  • Well-being at Work Act 1996.

1.6 To what extent are terms and conditions of employment agreed through collective bargaining? Does bargaining usually take place at company or industry level?

Collective bargaining is the key mechanism through which labour standards are established and maintained. A multi-industry agreement creates a formal framework for all collective labour agreements and is concluded every two years. A number of CBAs are concluded within the National Labour Council. They apply to all Belgian employers and employees.

CBAs at industry level are negotiated and concluded within so-called Joint Labour Committees ("Paritair comité / Comité paritaire") i.e. a committee for a certain industry sector composed of an equal number of representatives of the employers' associations and trade unions and is presided over by a government-appointed social mediator. Many are extended by royal decree to become generally binding to all employers in a particular sector or geographical area. The main business of the employer determines which industry sector it belongs to.

CBAs are also concluded at company level.

2 Employee Representation and Industrial Relations

2.1 What are the rules relating to trade union recognition?

The Act on CBAs and Joint Labour Committees of 5 December 1968 (Act of 1968) defines the criteria for trade union recognition. Trade unions recognised as a representative must:

  • be an inter-professional organisation of employees;
  • be set up for the entire country (Flemish, Brussels and Walloon Region);
  • have at least 50,000 members; and
  • be represented in the Central Council of trade and industry and the National Labour Council.

Currently, three trade unions meet the representativeness criteria: ACV/CSC; ABVV/FGTB; and ACLVB/CGSLB.

All subdivisions of (recognised) trade unions are also recognised as being representatives.

2.2 What rights do trade unions have?

Trade unions have no corporate rights. However, in some case, trade unions are granted a limited functional corporate existence by law, giving them the right to, for example:

- sign CBAs;

- take legal action in case of disputes relating to the Act of 1968;

- take legal action to protect their members' rights;

- take legal action to protect the principle of equal treatment for men and women or in case of disputes relating to the non-discrimination issues, racism and xenophobia.

2.3 Are there any rules governing a trade union's right to take industrial action?

No specific rules exist on this matter. Therefore, trade unions are, in principle, entitled to take industrial action at any time.

It is common practice to limit the rights to take industrial action in CBAs. The enforceability of such clauses is discussed.

2.4 Are employers required to set up works councils? If so, what are the main rights and responsibilities of such bodies? How are works council representatives chosen/appointed?

An employer with, on average, 100 or more employees must organise social elections in order to establish a Works Council (WC).

The WC is made up of management representatives and employee representatives. WC employee representatives are elected through social elections that take place every 4 years. The next social elections are scheduled in 2012. Management representatives are appointed by management.

The WC:

  • is entitled to receive information on business operations of the company;
  • must consult and negotiate with the employer before a collective dismissal, a plant closure or any substantial change in the company's structure;
  • must examine which initiatives can be taken to increase co-operation between management and personnel and make recommendations on the organisation of work and work conditions with a view to increasing productivity;
  • introduces and amends the work regulations;
  • advises on the standard for hiring and dismissing personnel;
  • fixes the period of the annual vacation in agreement with management; and
  • agrees on the appointment of the statutory auditor.

2.5 In what circumstances will a works council have co-determination rights, so that an employer is unable to proceed until it has obtained works council agreement to proposals?

Except in exceptional cases (ex. drafting and amending of the work rules) co-determination rights do not exist in Belgium. The WC does, in principle, not interfere with business decisions.

The WC has an advisory role and is entitled to receive information on all business operations of the company. It must therefore be consulted before every substantial company's structure change, such as a collective dismissal or a plant closure.

2.6 How do the rights of trade unions and works councils interact?

Trade unions unilaterally select which employees appear on the lists for the social elections. In this way they indirectly exert an influence on WCs.

2.7 Are employees entitled to representation at board level?

Employees are not entitled to representation at board level.

3 Discrimination

3.1 Are employees protected against discrimination? If so, on what grounds is discrimination prohibited?

Yes, three Acts, all dated 10 May 2007, prohibit both direct and indirect discrimination in employment matters. These Acts contain a list of criteria which cannot be used to make a distinction in treatment. Some criteria are the same as those protected under EC legislation, but the list also includes other criteria.

  1. The General Discrimination Act prohibits and sanctions discrimination based on age, sexual orientation, disability, religion or belief, marital status, birth, wealth, political or trade union beliefs, language, present or future health status, physical or genetic characteristics and social origin.
  2. The Racism Act prohibits and sanctions discrimination based on nationality, race, skin colour, background, and national or ethnic origin.
  3. The Sex Discrimination Act prohibits and sanctions discrimination based on sex.

3.2 What types of discrimination are unlawful and in what circumstances?

Direct discrimination based on a criterion that is also protected under EC legislation, is forbidden, unless such distinction can be justified by a genuine and determining occupational requirement. In employment matters and labour relations, most often no such justification exists. Direct discrimination based on another criterion is forbidden, unless the distinction in treatment can be objectively and reasonably justified.

Indirect discrimination occurs where, owing to one of the protected criteria, an apparently neutral provision or practice puts a certain group of people at a particular disadvantage compared to other people. Such provisions or practices constitute indirect discrimination unless they are objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

3.3 Are there any defences to a discrimination claim?

The employer must prove that the action taken was not discriminatory or that he had a good cause or a legitimate non-discriminatory reason for its action.

3.4 How do employees enforce their discrimination rights? Can employers settle claims before or after they are initiated?

The employee can:

  • contact the Social Legislation Inspectorate who will initiate a reconciliation process to end discrimination; or
  • directly begin legal proceedings.

Employees raising a complaint on the ground of breaching discrimination legislation are protected against dismissal for reasons related to filing the complaint.

An employee can, in principle, only sign a valid settlement agreement after termination of his employment contract. Whether or not the employee has introduced an official claim has no impact on the signing of a settlement agreement.

3.5 What remedies are available to employees in successful discrimination claims?

Victims of discrimination are entitled to a compensation of six months' salary. An employer breaching the Discrimination Acts risks civil and criminal penalties.

4 Maternity and Family Leave Rights

4.1 How long does maternity leave last?

Mothers are entitled to 15 weeks' maternity leave. They must take at least one week before the birth and at least nine weeks after the birth.

4.2 What rights, including rights to pay and benefits, does a woman have during maternity leave?

The employment contract is suspended during maternity leave and the employees are entitled to social security benefits (that is, a maternity allowance). The allowance amounts to 82% of the normal (non-topped up) remuneration (during the first 30 days) and 75% of a (topped up) remuneration as from the 31st day until the end of the maternity leave.

As from the moment a pregnant employee informs her employer about her pregnancy until 1 month after the end of maternity leave, she is protected against dismissal for reasons related to her pregnancy or birth giving.

4.3 What rights does a woman have upon her return to work from maternity leave?

Mothers must be given the same function and other employment conditions as before. They can convert two weeks of their maternity leave into vacation days which they can take when they return to work.

4.4 Do fathers have the right to take paternity leave?

Yes. Fathers are entitled to ten days' leave within a four-month period after the birth of a child. The employer pays employees on paternity leave for the first three days and the other seven are covered by sickness insurance.

4.5 Are there any other parental leave rights that employers have to observe?

Yes. Parental leave rights consist in the full or partial suspension of the employment contract. In case of full suspension of their contract, mothers and fathers can take a parental leave of 3 months before their child is 12 years. The same exists in case of adoption. Subject to certain conditions, employees are entitled to a career interruption allowance, i.e. an allowance paid by the social security.

4.6 Are employees entitled to work flexibly if they have responsibility for caring for dependents?

Employees who need to care for a very sick family member can take leave under certain conditions. They are either entitled to:

  • A complete suspension of their employment contract for a maximum period of one year.
  • A 50% or 20% reduction in their full working hours for a maximum period of two years.

During this leave, employees can claim a monthly career interruption allowance (see above, parental rights).

Similar rights apply to employees who interrupt their career to assist in the palliative care of a person who is suffering from an incurable disease and is terminally ill.

5 Business Sales

5.1 On a business sale (either a share sale or asset transfer) do employees automatically transfer to the buyer?

If a business is transferred and falls within the scope of CBA 32 bis, all existing employment contracts will be automatically transferred to the buyer. A new contract must not be signed.

5.2 What employee rights transfer on a business sale? How does a business sale affect collective agreements?

All individual rights and duties arising from employment contracts that exist on the date of the transfer are automatically transferred. This is also applicable for rights and duties arising from CBAs.

5.3 Are there any information and consultation rights on a business sale? How long does the process typically take and what are the sanctions for failing to inform and consult?

The employer must inform and/or consult the WC (or in its absence, the trade union delegation or in its absence, the HSC) prior to the business transfer or in some cases, the employees individually. The process can take from 1 day to 1 month.

The employer's decision is not in danger. An employer breaching the I&C risks criminal penalties.

5.4 Can employees be dismissed in connection with a business sale?

The business transfer as such is not a reason to end the employment contract. This rule applies to both the former and new employer. Employees dismissed due to a business transfer can therefore claim compensation in lieu of notice unless the employer proves an economic, technical or organisational reason for the dismissal involving a change of workforce.

5.5 Are employers free to change terms and conditions of employment in connection with a business sale?

The buyer is not entitled to change important individual or collective employment conditions unilaterally after the transfer. However, to comply with anti-discrimination law, the buyer may be required to negotiate harmonised employment conditions.

6 Termination of Employment

6.1 Do employees have to be given notice of termination of their employment? How is the notice period determined?

An employer is entitled to terminate an employment contract for an indefinite term by serving notice on the employee or by paying a severance payment in lieu of notice.

Different rules apply to blue-collar workers and white-collar workers to determine the notice period:

  • The notice period to be observed in case of dismissal of a blue-collar worker depends upon the length of service with the company.


Length of service (in years)

Notice period (in days)

> 20

112

Between 15 and 20

84

Between 10 and 15

56

Between 5 and 10

42

Between 0.5 and 5

35

< 0.5

28

  • The notice period to be observed in case of dismissal of a white-collar worker depends upon the gross annual remuneration and the length of service with the company.
  • White-collar workers with an annual remuneration of less than EUR 30,535 are entitled to a notice period equal to 3 months per commenced period of 5 years of continuous service at the company (legal minimum).
  • White-collar workers with an annual remuneration of more than EUR 30,535 are entitled to a reasonable notice period to be agreed at the earliest at the time of dismissal, or failing that, by the Labour court. The Claeys formula (based on a statistical analysis of case law) is often used to estimate the "reasonable notice". As a general rule, an employer should give 1 months' notice for each year of continuous service.

6.2 Can employers require employees to serve a period of "garden leave" during their notice period when the employee remains employed but does not have to attend for work?

Yes, that is possible.

6.3 What protection do employees have against dismissal? In what circumstances is an employee treated as being dismissed? Is consent from a third party required before an employer can dismiss?

Employees with an indefinite employment contract are protected because they can only be dismissed by serving notice or by paying a severance payment.

No prior approval from a third party agency is required for dismissing employees, unless for candidates and members of the WC or Health Safety Committee (see question6.4).

6.4 Are there any categories of employees who enjoy special protection against dismissal?

Some employees are specifically protected against dismissal. This does not mean that the employer is prohibited from dismissing them. An employer remains entitled to dismiss said employees, but must follow a special procedure and must prove that the reason for the dismissal is not the reason for protection.

Most important categories of protected employees are:

  • candidates and members of the WC or HSC (only to be dismissed for an economic or technical reason, with prior approval of the joint labour committee, or for a serious cause with prior approval of the labour court), members of the trade union delegation;
  • pregnant employees; and
  • employees who have made a formal complaint for harassment, discrimination, etc.

6.5 When will an employer be entitled to dismiss for: 1) reasons related to the individual employee; or 2) business related reasons? Are employees entitled to compensation on dismissal and if so how is compensation calculated?

A justification or cause is in principle not necessary to dismiss an employee, except in case of a dismissal for serious cause or in case of a special protection from dismissal (see question 6.4).

The dismissal must however not be unfair.

In case of unfair dismissal, blue-collar workers are entitled to six months' salary. A dismissal is considered unfair if the employer cannot prove the dismissal is based on economic grounds, or on the workers' incompetence or attitude.

White-collar workers are also entitled to compensation for unfair dismissal but they must prove that the employer abused its right to dismiss and that this fault caused damage apart from the job loss, which is already compensated by the severance payment.

6.6 Are there any specific procedures that an employer has to follow in relation to individual dismissals?

The employer has to follow strict formalities. Notice must:

  • be in writing in the appropriate language (depending on the location of the company's place of business);
  • be sent by registered mail or bailiff's writ; and
  • clearly indicate the start date and duration of the notice period.

6.7 What claims can an employee bring if he or she is dismissed? What are the remedies for a successful claim?

Employees can claim (additional) severance payment or other indemnities (for example, for unfair dismissal).

6.8 Can employers settle claims before or after they are initiated?

Parties often sign a settlement agreement to close or avoid disputes concerning the termination of their contract.

The agreement may not be entered into prior to the termination of the contract and implies mutual concessions. By signing the settlement agreement, parties waive statutory and contractual rights.

6.9 Does an employer have any additional obligations if it is dismissing a number of employees at the same time?

In that case the rules on collective dismissals can apply. This means that:

  • Prior to the decision of collective dismissal, the WC (or trade union delegation or HSC) must be informed and consulted (I&C procedure). The employer must examine all alternative proposals to prevent restructuring or to mitigate the social consequences.
  • Upon closing the I&C procedure, the formal decision of the collective dismissal must be notified to several authorities.
  • No dismissals must be made during a 30 (or 60)-day period after this notification.
  • A social plan must be drafted, containing rules on special redundancy payments and early retirement.
  • An Employment Unit Cell must be set up to help employees find new jobs.

6.10 How do employees enforce their rights in relation to mass dismissals and what are the consequences if an employer fails to comply with its obligations?

There is a specific procedure provided in Belgian regulation to enforce their rights. Frequently, employees use industrial action.

Employees can go to court and force the employer to comply with mass dismissals regulations. An employer breaching the regulation on mass dismissals risks civil (payment of specific collective dismissals indemnities, re-instatement) and criminal penalties.

7 Protecting Business Interests Following Termination

7.1 What types of restrictive covenants are recognised?

Only post-termination non-compete clauses are regulated. Post-termination non-compete clauses are only valid if the employee's gross salary exceeds EUR 30,535. If the remuneration does not exceed EUR 61,071 the non-compete clause will only be valid for employees whose functions appear on a list determined by collective agreement. If the remuneration exceeds EUR 61,071 the non-compete clause is in principle valid.

The non-compete clause:

  • must be in writing;
  • must address similar activities carried out by the employer and the employee;
  • should be geographically limited and may not extend beyond Belgian territory (companies with international activities or with a research centre may conclude non-compete clauses for a wider geographic area of application);
  • must be restricted in time (see question 7.2); and
  • must provide compensation (see question 7.3).

A post-termination covenant not to solicit is, in principle, recognised and valid, insofar as it does not entirely exclude the ex-employee's freedom to provide services.

7.2 When are restrictive covenants enforceable and for what period?

The non-compete clause is only enforceable after the probationary period if the employee terminates the employment contract (without serious cause) or if the employer terminates the employment contract for a serious cause. The non-compete clause must not exceed 12 months (companies with international activities or with a research centre may conclude non-compete clauses for a longer duration).

7.3 Do employees have to be provided with financial compensation in return for covenants?

The non-compete clause must provide for the payment of a lump sum compensation of at least ½ of the gross remuneration equal to the duration of the clause. If the employer waives the non-compete clause within 15 days following the termination of the employment contract, no compensation is due.

7.4 How are restrictive covenants enforced?

The employee/employer must send a notice of default to the employer/employee or go to court to enforce his rights.

8 Court Practice and Procedure

8.1 Which courts or tribunals have jurisdiction to hear employment-related complaints and what is their composition?

The competent courts are labour tribunals in first instance and labour courts in appeal.

The claimant should generally summon the defendant before the labour tribunal of the place where the employment is executed by the employee.

Every chamber of a labour tribunal has three judges: one professional judge as president; and two judges in social matters, of which one is appointed by an employers' organisation and the other by a trade union. Every chamber of a labour court has three or five judges: one professional judge as president; and two or four judges in social matters depending on the importance of the dispute, of which half are appointed by an employers' organisation and the other half by an employees' organisation (trade union).

8.2 What procedure applies to employment-related complaints? Is conciliation mandatory before a complaint can proceed?

A dispute is brought before the labour tribunal by a writ of summons, though a petition can also be used. Appeal before a labour court is generally done by petition.

Shortly after serving the writ of summons or the petition, parties are requested to appear for an introductory hearing. In general, a calendar for written briefs is agreed upon at the introductory hearing and a date is set for oral pleadings. Parties take turns in developing their arguments in written briefs, the first and last brief normally being for the defendant. Afterwards, oral pleadings take place on the set date. The judgment usually takes place about one month after the oral pleadings.

For certain matters, conciliation is mandatory before starting legal proceedings. In reality, mandatory conciliation is rather useless and it is simply noted on the records of the tribunal's session that there was a conciliation attempt.

8.3 How long do employment-related complaints typically take to be decided?

This strongly depends on the complexity of the matter and especially the delay of the tribunal. As a general rule it would take about one year from the introductory hearing to the judgment.

8.4 Is it possible to appeal against a first instance decision and if so how long do such appeals usually take?

Filing an appeal against a first instance decision of the labour tribunal is possible in the vast majority of cases. The duration of the procedures before the labour courts also depend on complexity and the delay of the court. The proceedings will generally take about one year.

Acknowledgment

The authors would like to acknowledge the assistance of their colleague, Stijn Demeestere, in the preparation of this chapter.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.