Author: Chris Van Olmen Structural teleworkers (remote workers), who work on average at least one day per week (5 days / month) from home, can receive a cost compensation (the so-called “office compensation”) by the employer to cover the costs of electricity, heating, etc. It is not necessary to prove the actual value of the […]
Author: Chris Van Olmen The Belgian government is currently working on several important new and amending laws and rules regarding employment law. Below, we provide a concise overview and an estimated timeline for their implementation. Labour deal In February 2022, we wrote about the Labour Deal of the Belgian federal government. This political deal included […]
Author: Chris Van Olmen The Belgian government estimates that around 200.000 Ukrainian citizens will seek refuge in Belgium over the coming weeks and months. Together with the EU, Belgium has made it less complicated for Ukrainians to enter the Belgian labour market. We have set out below, the basic conditions for Ukrainian refugees’ right to […]
Author: Chris Van Olmen The Supreme Court of Belgium (Court of Cassation) was obliged to enunciate its position on the persecution of a group of trade union activists, who had collectively blocked an important highway, causing dangerous road conditions and a traffic jam of over 400km. The Court confirmed the criminal condemnation of the group […]
The Belgian Federal Government recently reached an agreement on the reform of the labour market. The deal includes various social policy measures, which will result in legislative changes in employment law. The measures are, for now, merely part of a political deal. The national social partners will still be asked to give their advice. Afterwards, […]
Belgium is not the only bad pupil in the European class. The vast majority of EU Member States did not meet the deadline of 17 December 2021 for the implementation of Directive (EU) 2019/1937 of 23 October 2019 on the protection of individuals who report infringements of Union law. Nevertheless, Belgium has already taken some […]
The Programme Act of 27 December 2021 has adapted the special tax regime for foreign executives coming to Belgium to work. The very beneficial system, which sometimes led to foreign executives not having to pay taxes altogether, has been replaced with a system in which executives will have to pay taxes, but can still benefit […]
After more than two years of investigations by the Labour Prosecutor, on 8 December 2021, the Labour Tribunal of Brussels ruled that Deliveroo riders should not be qualified as employees, but rather as self-employed workers. However, they do not qualify to work under the fiscally beneficial sharing economy system. The judgement of 8 December 2021 […]
On Tuesday 12 October, the Belgian federal government presented its budget for 2022. The negotiations between the governing parties resulted in a list of measures regarding employment law, which will have to be laid down in the legislation during the coming months. We give a concise overview below. Employees will no longer need a medical […]
In 2003, the Belgian Supreme Court developed the so-called ‘Antigone’ theory, which allows the use of improperly collected evidence (collected without following the applicable rules) in criminal cases (Cass. 14 October 2003). For almost 20 years, there has been a fierce debate whether this theory can also be applied to non-criminal cases, including labour law […]
The Constitutional Court ruled that Articles 10 and 11ter, §1, paragraph five of the Employment Contracts Act violate the principle of equality. These provisions prohibit the conclusion of temporary employment contracts and replacement contracts for longer than (in principle) two years, but such a prohibition does not apply if temporary employment contracts alternate with replacement […]
The Act of 28 March 2021 providing for a right to a short leave for workers in order to receive a vaccine against the coronavirus COVID-19 was published in the Official Gazette on 9 April 2021 and entered into force on the same day. It will cease to apply on 31 December 2021 (unless the Government decides to prolong it until 30 June […]
Through a claim from an employee of an IT consultancy, the Litigation Chamber of the Data Protection Authority has clarified the boundaries of the employer’s obligations when faced with a request of access to, and a copy of, the former’s personal data. It (i) elaborates on the accepted and unaccepted grounds of refusal for the employer and (ii) underlines that anonymisation constitutes a favoured alternative.
As the telework during the COVID-19 pandemic does not perfectly fit with the existing legal systems of occasional or structural telework, employers and employees were confronted during the last year with the absence of a clear legal framework. The new Collective Bargaining Agreement no. 149 of 26 January provides a framework for employers and their […]
As was announced long before the last-minute EU-UK trade deal of December 2020, Belgium had no intention to harass UK citizens who were already living and working in Belgium before the end of the transition period. However, UK citizens with no prior Belgian “experience” are treated like third country nationals and will, in principle, have […]
As Belgium begins rolling-out its vaccination programme against the coronavirus, employers may wonder whether they can make a vaccination against the virus obligatory for their employees.
The new Belgian government prioritises the promotion of gender equality and the fight against discrimination based on gender. One of the first steps in this agenda is the extension of birth leave, which is the leave that fathers or co-parents can take at the birth of a child.
Now that Belgium has been hit by a “second wave” outbreak of the coronavirus, Belgian employers and employees are facing new (or renewed) governmental measures to prevent the further spread of the virus. At the same time, the government has decided to implement further support measures to make sure that companies and employers receive a fair chance to survive this crisis. Below we give an overview of the most important measures. At the time of publication, some of these measures do not yet have a legal basis
Even in the midst of the COVID-19 pandemic, employees still have the right to take their annual holidays. However, the corona crisis makes the execution of this right more difficult than in previous years. This article looks at the issue regarding the location of the holiday destination, if the employee intends to go on vacation […]
The Coronavirus (COVID-19) crisis is affecting businesses in various ways. For example, companies will be forced to close down or face a major decline in work and turnover. Such a financial shock can be partly absorbed by the system of temporary unemployment. Belgium has several systems of temporary unemployment, which are supervised by the National Employment Office (RVA/ONEM). Initially, there are two relevant systems: temporary unemployment due to force majeure and temporary unemployment due to economic reasons. However, the government has decided to open up the temporary unemployment procedure due to force majeure to all situations related to the coronavirus, without actually referring to a situation of force majeure. This is because the procedure for economic reasons is often much more cumbersome. If the temporary unemployment is not due to the coronavirus, the employer can still invoke the system of temporary unemployment for economic reasons.
The amendment on combating discrimination between women and men was recently approved. In addition to the previously protected grounds of gender, pregnancy, childbirth, maternity, gender change, gender identity and gender expression, the amendments will further expand the list to include the grounds of paternity, co-motherhood, breastfeeding, gender characteristics, adoption and medically assisted reproduction
Even if there are objective reasons for setting an age limit for applicants, the employer must duly justify a direct distinction. In a recent judgment, the Brussels Labour Court carried out a meticulous justification test and ruled that an age limit of 25 for the recruitment of air traffic controllers constitutes discrimination
Although the concepts of homeworking (also called domestic work) and telework are often confused with one another, as they both entail the situation that the worker does not work from the office of the employer, there are important differences. In a judgment of 2 July 2019, the Brussels Labour Court of Appeal has denied the claim of an employee seeking the benefits of a domestic worker, as she was actually a teleworker
Court of Cassation decision answers the question of whether the employee has to pay back undue wages, in gross or net form, to the employer. Specifically, the question arises as to whether, in addition to the net salary, the employee must first reimburse the withholding tax on wages and, secondly, the employee’s social security contributions
If an employee, in accordance with national Collective Bargaining Agreement no. 109, requests the concrete reasons for his or her dismissal by registered letter, the employer must also provide them by registered letter. If the communication has been made by other means, the employee can claim payment of a fixed fine. This does not constitute an abuse of rights
The European Works Council Directive is an interesting and important tool for social dialogue, yet is still relatively unknown, which is why Van Olmen & Wynant organised an employment forum on the matter in September
In a recent judgment, the Court of Justice ruled that witnesses of discrimination are not sufficiently protected by Belgian legislation on discrimination
In a judgement of 20 May 2019, the Belgian Supreme Court has answered the question whether benefits provided by a third party to an employee, should be seen as part of his/her wage, on which social security contributions need to be paid
The Labour Court of Leuven, in a judgment of 11 April 2019, has declared a sectoral collective agreement non-applicable as it linked wage increases to the seniority of the employee, because it deemed it to be in contradiction with the prohibition of discrimination based on age
Every four years the Belgian companies of the private sector hold social elections for the worker representatives in the works council and the health and safety committee. The Act of April 4, 2020 has amended the general Act on social elections of 2007 in order to introduce some novelties for the upcoming elections of 2020
The national social partners have concluded an agreement on some important future measures of employment and social security law. The outcome of the negotiations was highly uncertain as the socialist trade union did not agree with a maximum raise of the wages of 1,1% in the midst of difficult discussions on the raise of the minimum wage
Even in the era of far-reaching international trade agreements and regional economic and political partnerships, the majority of laws and regulations governing the workplace are still determined by the individual countries where employees work.
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In order to diminish the number of company cars and the resulting congestion and exhaust emissions, the Belgian government introduced the cash-for-car system in 2018. On March 1, 2019 a second option entered into force to promote alternative ways of mobility: the mobility budget
Belgium was hit by a national strike on 13 February 2019. The collective actions were caused by the discontent of the trade unions with the national wage bargaining system, which they argue to limit their freedom to negotiate higher wage increases
On 24 December 2018 the Single Permit procedure became applicable. Non-EER citizens who want to stay and work in Belgium and their employers will have to follow this new procedure. The single permit procedure replaces the old double procedure for separate stay permits and work permits
The Act of 26 December 2013 laid down a deadline of 1 January 2019 in the Employment Contracts Act for the sectors to introduce new outplacement measures in collective bargaining agreements. As no sector has undertaken any action in this regard, the National Labour Council is trying to find a solution, as the absence of such provisions are punished by additional contributions for employers and employees in case of dismissal.
Before, schooling clauses were only allowed if the annual wage of the employee reached a certain threshold. Legislation has now been introduced with a possibility to provide a schooling clause in employment contracts for lower paid bottleneck jobs.
Employers who are looking to hire foreign (non-EEA) workers, will soon be able to apply for a single permit instead of two (residence and work permit in one). However, finding the correct legal sources might become difficult thanks to the transfer of competences to the Regions.
The Act of 18 July 2018 has introduced an annual threshold of 6130 euro, for additional income derived from work for associations, occasional services by private persons for private persons, and the on demand economy. Under this threshold, no income taxes or social security contributions are required
Before the implementation of EU Directive 2016/943 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure, Belgian law did not provide for a general legal framework on the protection of trade secrets. The Belgian act transposing this directive should entail a stronger protection for undisclosed know-how and business information
New legislation requires an employer to discuss with the workers’ representatives the disconnection from work and the use of digital means of communication.
The new notice periods will be effective as of 1 May 2018.
The new notice periods will be effective as of 1 May 2018.
To facilitate the collection of evidence of (alleged) discrimination, social inspectors may as of 1 April 2018, under certain conditions, act as a (potential) client or employee, in their assignment to prove discrimination by companies.
As of 1 January 2018, employers who exempt their employees from work for a long term have to pay an additional social security contribution.
With a new draft programme Act, the Belgian government wants to simplify the introduction of night work in e-commerce companies. Instead of an approval from all trade unions within the company, night work could be introduced with the approval from just one trade union.
Since 1st October 2017, the formalities for part-time work have been simplified and modernized
ECJ clarifies criteria to establish employees’ ‘home base’ for governing law purposes
Understanding the distinction between contractors and employees and the re-characterisation of a contractor into an employee
As part of the so-called Summer Pact, the Federal Government plans to shorten the notice period during the first 6 months of employment as a way to reintroduce the trial period.
The Federal Government wants to expand the so-called ‘flexi-jobs’ to the retail industry, department stores, etc.
The Federal Government has reached an agreement on the introduction of a mobility budget, which will allow employees to make a choice between their company car or an equivalent cash budget, which they can use freely. Before entering into force, the proposal will now have to follow the legislative procedure.
The Federal Minister of Work has prepared a preliminary draft bill regarding the use of mystery calls to counter-attack discrimination in application procedures.
The new codex – which codifies existing legislation on that subject-matter – has entered into force.
The National Labour Council recently modified the Collective Bargaining Agreement on ecocheques (CBA n° 98), particularly with a view to adapt the list of products and services which can be purchased by employees with ecocheques.
Recently, the Supreme Court ruled that an employee can only renounce the suspension (and therefore extension) of a period of notice due to vacation or incapacity for work when this period has already expired or – if it is still running – only for the part of that period that has already expired.
A new codex on the well-being of workers – which bundles the existing legislation – will soon appear in the Belgian Official Gazette.
As the Belgian legislation with regards to the dismissal of employees was thoroughly reformed on 1 January 2014, questions arose on the applicability of clauses in employment contracts, which dated from before that reform regarding the applicable period of notice. Currently, there are three tendencies in case law.
Recently, the Supreme Court judged that the organiser of a pension promise (in casu an employer) is obliged to reimburse the deficits, which arise in a complementary pension scheme and this, regardless of the cause of the deficit, such as the bankruptcy of the occupational pension institution.
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A CEO fired an employee for serious cause without being competent to do so. The
employee was therefore granted a severance pay by the Labour Court of Appeal.
The National Labour Council has adopted new Collective Bargaining Agreements (CBA’s), which determine the age and the career requirements for the deviant systems of ‘Unemployment with a Company Allowance’.
The Government has reached an agreement on the sanctions to be imposed on employers and employees who do not fulfill their obligations with regards to the new rules concerning the reintegration of long term sick employees.
The Labour Court of Appeal of Brussels ruled that the refusal of an employee to accept a change of working place, which was agreed upon by a company collective bargaining agreement, constituted a reason for a dismissal for serious cause by the employer.
A new bill was published which reforms Belgian employment law in order to make the Belgian economy more competitive and to improve the work/life balance of the employees. Two of the most important changes are “the performance of 100 voluntary overtime hours by the employee” and the introduction of “occasional telework”.
A Royal Decree has reformed the rules regarding the medical examination of employees. Some changes are of particular interest for the employer.
The conversion of a dismissal with a period of notice into an immediate dismissal does not provide the employee with a new deadline to request a motivation of his/her dismissal from the employer.
Facts, which occurred in the private life of an employee, do not always justify a dismissal for serious cause.
The new legislation regarding the reintegration of employees on long-term sick leave has abolished the old legislation.
The legal interest rate, which, for example, is important to calculate the amount due in case of salary arrears, decreased from 2,25 (2016) to 2% (2017).
In their inter-professional agreement 2017-2018, the social partners have set the wage norm for 2017-2018 at 1,1%.
EU Directive regarding secondment was transposed into the Belgian law.
Increase from 6x to 8x in criminal and administrative fines for Social Crimes apply as of 1 January 2017
Time-credit without justification is deemed to disappear on 1 April 2017. Other rules are modified.
An applicant was not taken into consideration by a recruiting company as he was a member of a family which – in the opinion of the recruiting company – was “dishonest”. A Labour Court condemned the recruiting company to pay a 6 months’ salary indemnity on the ground of discrimination.
Workers who are temporarily unable to work may be considered to have a disability, if the judge finds their incapacity is likely to be long-term, in view of the scientific and medical evidence presented.
the Governement is considering a new social and fiscal statute for student-entrepreneurs to stimulate entrepreneurship and job creation.
employees with a long-term illness will have the opportunity and will be encouraged to (partially/progressively) return to work by running through a reintegration path. It will only be possible to invoke a medical “force majeure” ending the employment contract, when the reintegration path has been followed.
the use of language in the employer-employee relationship is regulated by law in Belgium. The use of a language other than the applicable one (Dutch, French or German) can be sanctioned by a nullity. In cross-border cases, the penalty of nullity, as provided in the regional language decrees, can be lifted. In the case at hand, the Belgian branch of an international group cited “malfunction” as the basis for terminating an employee with dual nationality (Dutch / Spanish). The employee claimed that the employer could not invoke the evaluation forms, which he produced as evidence for the malfunctioning of the employee, as they were drafted in English and were therefore in violation of the Flemish Language Decree. The Labor Court of Appeal of Brussels however, judged that the cross-border character of the employment relationship lifts the penalty of nullity as foreseen in the Flemish Language Decree.
A security guard performed activities for a security company on a self-employed basis from 1 January 2007 till 31 December 2008. After his contract was terminated, the security guard claimed that in reality he was subordinated to the security company and therefore his service contract should be reclassified as an employment contract. The Court of Cassation overruled the judgment of the Labour Court of Appeal. The Court of Cassation ruled that the fact that one of the parties in an employment relationship has the right to impose disciplinary sanctions to the other party, excludes the possibility of self-employment, except when such disciplinary right is inherent to the profession and imposed by (virtue of) law. As this was not the case in the case at hand, the judgment of the Labour Court of Appeal was overruled.
An employee representative was fired for serious cause as he had deliberately used the terror threat to pull a “prank-call” on the safety manager of his company. By doing that, the concerned employee caused a serious panic in the company. Taking into account the recent terrorist attacks, the Labour Court of Appeal ruled that the dismissal for serious cause was justified as the concerned employee, by pulling such a prank and contributing to the panic which was caused by the terrorists, had broken the relationship of trust with the employer. This judgment is an interesting illustration of the possible impact of the terror threat on the employment relationship.
In order to prevent social dumping in the transport sector, the principle that an employee who works in different countries, is subject to the law of the country in which the employee usually carries out his/her work, will be introduced in the Belgian legislation.
Every two years a wage norm is established. This wage norm determines whether and how the labor costs of companies may increase so that Belgium can remain competitive with her neighbors and main trading partners Germany, the Netherlands and France. In principle, the wage standard is established by an inter-professional agreement between the Social Partners. However, in the past years the Social Partners did not succeed in concluding such an agreement and the wage standard was established by Royal Decree. The draft of the bill withholds the principle that the wage standard is established by the Social Partners – and in default by Royal Decree.
In a recent case, a shop manager was fired for serious cause, as she did not comply with the store policies. However, the Labour Court judged that the facts at hand did not justify a dismissal for serious cause. As a result, the Labour Court condemned the employer to pay the employee the legal termination indemnity. The Labour Court also condemned the employer to an indemnity for unjustified dismissal of 17 weeks’ salary. In the past, it was rather difficult for (white collar) employees to obtain, in addition to the legal termination indemnity, damages for unfair dismissal, of which, the relatively low amount was often set by the judge. However, things have changed since 1 April 2014, and the employer is obligated to duly motivate the dismissal under penalty of an indemnity ranging from 3 to 17 weeks’ salary.
As a consequence of a recent wave of restructurings and therewith associated collective dismissals, the Federal Minister of Work intends to adjust the legislation on collective dismissals and has submitted in that regard 5 measures to the social partners for discussion. These measures will be discussed among the social partners and counter-proposals are expected. There is currently no deadline in that regard.
As of 1 October 2016, an employer is obliged to pay the salary of the employee by bank transfer. Payment in cash is only allowed when a collective bargaining agreement at sector level is concluded, which allows such payments or when an implicit agreement or use was officially formalised.
As of 1 January 2017, both funds will merge into a new fund ‘Fedris’ or ‘Federal Agency for workrisks’. The purpose of the merger is to cut government expenses since the employees of both funds will be accommodated in the same building.
As of 1 October 2016, interimcontracts will have to be signed before the start of work. Under the old legislation, interimscontracts could still be signed two days after the start of work. This made abuse possible (for example: in some cases the interimworkforce had a work accident the first day of work due to which his/her employers did not want to sign the interim contract anymore). Now, such abuse is no longer possible.
Employees in a “heavy occupation” can retire earlier than other employees. As the National Government is planning to make different changes to the pension legislation, a National Pension Committee was established. The National Pension Committee has agreed to split up the notion “heavy occupations” into 4 categories (stressful working conditions, stressful work organization, increased security risks and mentally or emotionally heavy tasks). However, for each category, specific criteria are to be defined by the social partners to determine whether or not a job falls under one of these categories.
In a case before the Labour Court of Appeal of Brussels, a dismissed employee claimed that the 300 EUR flat rate allowance, which she received in addition to the a reimbursement of actual costs, was covert pay and had to be included in the basic annual salary for the calculation of the indemnity of lieu. The flate rate expense covered taxi-, parking, carwash- and clothing costs, where the reimbursement for actual costs was related to costs which the employee had to make in her contacts with clients (restaurant costs, …). As the nature of both expense allowances was different, the flat rate allowance could not be considered covert pay in the opinion of the Labour Court of Appeal.
On 1 August 2016 a ‘permanent system for fiscal and social regularisation’ was introduced. This system allows natural persons, as well as companies, to regularize their fiscal and social status by reporting non-declared earnings, VAT, and other non-declared forms of income. By reporting these incomes one can – under certain conditions- avoid fiscal and criminal prosecution. In return however, these incomes will be subject to an increased tax rate.
In principle, the employment of juvenile employees (i.e. employees between 15 and 18 years old who are no longer subject to compulsory full time education) is forbidden, though deviations apply. Recently, this law was updated, whereby the definition of a ‘juvenile employee’ was expanded (for example with ‘juvenile employees in a training course’, …), as well as the scope of some of the prohibitions.
A female employee was fired for serious cause, because she had repeatedly and deceitfully transferred “bonus points” of clients to her personal loyalty card. Both at first instance and on appeal, the judges ruled that despite the severity of the misconduct, and taking into account the isolated character of the misconduct as well as the seniority of the employee, the dismissal for serious cause was not proportional to the misconduct. In so doing, the judges joined a certain tendency in the legal doctrine and case law, according to which when assessing a serious cause, the gravity of the therewith-associated sanction (i.e. the loss of employment without indemnity or period of notice) must be taken into account. Recently however, the Supreme Court ruled that by taking into account such proportionality, judges fail to appreciate the true essence of the term ‘serious cause’, which is defined as a misconduct which renders the continuation of the employment relationship immediately and definitely impossible. This does not allow for an evaluation to be made between the misconduct and the sanction.
On 1 April 2014, collective bargaining agreement n° 109 regarding the motivation of a dismissal entered into force. Since then, all employees in the private sector can ask their employer to motivate their dismissal. Proper sanctions are foreseen when an employer would ignore such request or when the dismissal would be found manifestly unreasonable by a Labour Court. For the contractual employees in the public sector, no such regulation was adopted and the old regime – where only blue collar workers were statutorily protected against unfair dismissal and white collar workers had to invoke the theory of abuse of rights to obtain compensation when they were fired unfairly – remained. Recently however, the Constitutional Court ruled that the situation in the public sector is no longer tenable and the legislator should urgently work out a similar regulation as in the private sector. For the time being, Labour Courts that are confronted with an unfair dismissal in the public sector are ordered to be inspired by CBA n°109 when rendering their judgements.
Student work is very popular in Belgium. The main reason is the fact that students, as well as the employers who employ them, enjoy, under strict conditions, significant reductions in social security contributions on the earned/paid out salary. Recently, the Ministers of the Federal Government agreed to adjust the legislation on student work. As of 2017, the period for which students may work under the previously mentioned advantageous conditions will no longer be expressed in days, but in hours (475 hours to be exactly). This reform will render student work more flexible, as students for example will no longer lose a whole day when they work in fact only a couple of hours a day and employers will be able to enable students more easily at peak moments in view of the fact that over-hours will be permitted under certain conditions.
Within the ‘peer-to-peer economy’ people mutually consume, produce and trade products, services, knowledge and money through online platforms. As of 1 July 2016, new legislation entered into force, which introduces – under strict conditions – a favourable tax regime for incomes obtained in the peer-to-peer economy. With this law, the legislature hopes to stimulate entrepreneurship among people.
In principle, the posting of workers from one employer to another is prohibited under Belgian Law. Only when certain strict conditions are complied with, is the posting of workers allowed. If these conditions are not fulfilled, the posting is null and void. Recently, the Supreme Court rendered a judgment and ruled that when the posting of workers between two employers is null (i.e. does not meet the strict conditions), the posting employer cannot demand payment of his invoices from the receiving employer. The argument that the receiving employer would be enriched without a cause, as he has made use of the posted workers, was not addressed by the Court.
The child benefit is a social security benefit in respect of which competence has been transferred from the Federal State to the Belgian Federated Flemish and French-speaking entities. The Flemish Government has recently issued a concept note in which she announces to reform this benefit. The main changes are: the equalization of the child benefit for every child and the introduction of a social supplement for children from disadvantaged families. The intention of the Flemish government is to have these reforms into force on the 1st of January 2019. New legislation has to be adopted to meet this goal.
The Minister wants to reform the employment legislation in order to increase the competitiveness of companies and to grant workers more flexibility in carrying out their work. Firstly, the Minister wants to annualise the working time, which is now still fixed on a weekly basis in most companies and sectors. Furthermore, not all overtime work will have to be compensated with compensatory rest by the employer in order to respect the weekly working time on an annual basis. Employees would receive a credit of 100 hours for overtime work which they can voluntarily perform, after which they can ask to pay out these overhours or save them in a “career saving account”, which should allow the employees to, for example, work part time for a period of time, to take a sabbatical, etc. When and to which extent these reforms will enter into force, is temporarily uncertain, as negotiations between the social partners will have to take place first.
As of 1 May 2016, the amendments on the Social Penal Code entered into force, specifically with regard to the prevention of violence, moral and sexual harassment at work, different sanctions took effect. As almost every non-respect (or incorrect application) of the obligations is henceforth sanctioned, employers are strongly encouraged to comply with the rules on the prevention of psychosocial risks at work. In addition, another important change was the (re)introduction of sanctions against workers (or the self-employed or civil servants) who perform undeclared work, even if they do not receive replacement incomes.
In principle, these lump-sum allowances are not considered as ‘salary’ from a tax point of view, as they are a reimbursement of costs to be borne by the employer. Generally, the latter are reimbursed on a flat-rate basis. The setting of the lump-sum allowance is a factual matter, depending on the function of the worker and his/her duties. In practice, many companies request a ruling by the tax ruling commission or their local tax office in order to avoid recharacterisation of the cost allowance into taxable remuneration. However, the tax administration recently decided to change its policy in that regard. From now on, only the tax ruling commission will decide on lump-sum allowances concerning employer related costs. Local tax offices are no longer allowed to issue such rulings.
Under Belgian Law, the working time schedules of part-time workers are to be properly kept and respected by the employer. However, the Supreme Court recently ruled that the aforementioned presumption only applies for the benefit of the institutions and government officials, which are empowered to prevent and obstruct undeclared work. As a result of this judgement, part-time employees cannot invoke the presumption in order to claim fulltime salary and should always be able to prove their actual (fulltime) performances in order to obtain additional pay.
Recently, the Supreme Court held that the rules regarding the dismissal of a statutory civil servant (including the right to a prior hearing and the formal obligation for the public authority to state the reasons for the dismissal) do not apply to contractual employees working in the public sector. However, the French-speaking Labour Court of Brussels now raised a prejudicial question to the Constitutional Court on whether the Constitutional principle of equality does not oppose itself to the current regime. The judgement of the Constitutional Court is expected in the coming months.
In January 2016, the Joint Committees (JC) for the retail sector (JC n° 201), the retail in nutrition (JC 202), the large retail businesses (JC 311) and the department stores (JC 312) entered into a framework collective bargaining agreement (CBA) organizing night work with regard to e-commerce. In March, a Royal Decree was adopted confirming […]
In our web alert of March 2016, we indicated that a draft bill amending the Social Penal Code had been voted within Belgian Parliament. This bill has now been published in the Belgian Official Gazette and enters into force on May 1, 2016.
The indexation leap was a measure introduced by the government to improve Belgium’s competition position. On 1 April 2015, the government blocked the flattened health index at the level of March 2015. This blocking period would be maintained until an indexation leap of 2% was reached. As a result of the high inflation rate, the […]
In the case presented to the Supreme Court, an employer paid supplementary childcare allowances on top of the legal childcare benefits to employees with children who fulfilled certain conditions with regard to function and seniority. The National Social Security Office argued that these supplementary payments needed to be qualified as salary and were therefore subjected […]
Employment Law Across 27 Jurisdictions 2016, an L&E Global and Clyde & Co joint publication, provides a brief outline of the employment law regime across 27 key jurisdictions throughout the globe.
The National Social Security Office (NSSO) accepts certain maximum lump-sum amounts for the reimbursement of specific costs that need to be borne by the employer. As of 1 January 2016, the lump-sum amounts for the purchase and maintenance of working clothes and for meal expenses for mobile workers have been increased.
As of 1 April 2014, a dismissal will be considered as ‘unjustified’ because it is ‘manifestly unreasonable’ if the dismissal: i) has been carried through for reasons unrelated to the worker’s capability or conduct, or the operational requirements of the undertaking, and ii) would never have been decided upon by a normal and reasonable employer. […]
Since 2002, the majority opinion in Belgian case law and amongst legal scholars was that if an employee partially waives his salary, social security contributions remain due on the part of the salary that has been waived. That is until very recently, as the Supreme Court has now ruled that no social security contributions are […]
The Social Penal Code, established in 2010, encompasses all infringements to labor and social security laws and includes four levels of sanctions, depending on the gravity of the violation. On 18 February 2016, a draft bill was voted on within the Belgian Parliament to amend this Social Penal Code, update it with legal developments after […]
For employers with operations in multiple jurisdictions, litigation over disputes related to employment matters is a very real and increasingly significant concern, which applies to every sector of industry, in every region of the world. This comprehensive publication includes contributions from 28 key jurisdictions across 5 continents and will be a valuable resource for all […]
Eco vouchers can be issued electronically instead of on paper and be put on the same electronic card as meal vouchers CBA nr. 109 on the motivation of dismissals will also be applicable to the construction, fabrics and carpentry, diamond and port sector. The target group reductions on social security contributions for the first five […]
Besides new rules for the return employers need to guarantee regarding supplementary pension schemes (see our web alert of November 2015), this new Act also foresees the following: i) The employer needs to inform his employees who leave their accumulated pension reserves within the pension scheme of the (ex)employer upon termination of the employment contract […]
As a consequence of the Unified Employment Status Act of 26 December 2013, the notice periods for blue- and white-collar workers were aligned for the seniority accrued after 1 January 2014. Yet, for the seniority accrued before 1 January 2014, blue-collar workers still have shorter notice periods. In order to compensate for these shorter notice […]
In 2011, the Labour Court of Appeal of Antwerp ruled that the decision of the external prevention service (the occupational physician) to declare an employee who had diabetes and who suffered from an insulin dependency, permanently disabled, was discriminatory. On top of the nullity sanction of the decision to declare the employee disabled, an indemnity […]
On the basis of the former article 63 of the Employment Contracts Act, which was applicable at the time of the case, a dismissal that is not based on either the conduct or capability of the employee or the operational requirements of the undertaking could be qualified as a manifestly unreasonable dismissal for which an […]
From 1 January 2016 onwards, 4 weeks of salary is deducted from the indemnity in lieu of notice as compensation to a right to outplacement: An employee who is dismissed with an indemnity of at least 30 weeks of salary is entitled to outplacement. Until 31 December 2015, dismissed employees were entitled to waive their […]
From 1 January 2017 onwards, the LIMOSA notification for self-employed people will only apply to risk sectors. Since 2007, posted self-employed people are required to notify the commencement of their activities in Belgium to the Belgian authorities. Following complaints of the EU Commission pertaining to possible infringements to the right of free movement of services, […]
As previously announced in August of 2015, the Belgian federal government reached an agreement on ‘guidelines’ of a tax shift from labour to other forms of income in August 2015. One of the key reforms is the drop in employer’s social security contribution from 33% to 30% from 1 April 2016 onwards and to 25% […]
A dismissed employee is entitled to a non-compete indemnity when the employer does not renounce its application in due time: In Belgian employment contracts, it is, in principle, mandatory to foresee an indemnity ‘as a compensation for imposing restrictions on the right to execute certain activities’ in the framework of a non-compete clause. Upon termination […]
The federal government has introduced the option for employers and employees to make use of so-called flexi-jobs in the catering industry. In this system, people who carry out at least a 4/5th of a full-time employment in the non-catering industry can be employed in the catering industry under flexible social security conditions (no employee contributions […]
Until recently, the general rule was that an appeal or opposition suspended the execution of a court ruling, unless the ruling was declared “provisionally enforceable” (“uitvoerbaar bij voorraad / exécutoire par provision”), in which case the winning party could immediately force the losing party to execute the sentence even if the latter had lodged an […]
As of 1 April 2014, all workers (blue and white collar) may ask their employer to provide them with the reason(s) for their dismissal. If an employer does not (timely) respond to such a request, it will be required to pay a lump-sum civil fine (indemnity) of two weeks’ salary to the employee, provided that […]
On the basis of the Act on Supplementary Pension Schemes (hereafter ‘SPSA’), employers are obliged to guarantee a certain return on supplementary pension schemes when the employee retires or exits the scheme (i.e. 3,75% on the employee’s contributions to all pension plans and 3,25% on the employer’s contributions to defined contribution plans and cash balance […]
An employer who is not able to prove the actual costs for each individual employee, is not barred from the possibility to apply an equal lump-sum cost allowance for all its employees. The National Social Security Office (NSSO) demanded proof of the employer, of the actual costs of each individual employee as justification for the […]
Since the 1st of January 2014, it is impossible to include a trial period in an employment contract. Yet, in a case presented to the Labour Court of Ghent, an employee entered into service in August 2013 and was dismissed in June 2014. His employment contract included a trial period of six months (which was […]
Upon the dismissal of an employee (without respecting the dismissal procedure for protected employees) a strike broke out in a company. According to the Court of Appeal of Mons, the fact that the right to work and the right to property is hindered by such actions, can be justified when the employer himself abuses his […]
The employer is obliged to pay employees who are willing to work during a strike if it is not completely impossible to perform their tasks. In a recent case, an employer failed to allow employees to work because of a strike. The employer refused to pay the employees who did not participate in the strike, […]
The Belgian Supreme Court renders a long-awaited decision on the motivation of dismissals of employees in the Public Sector. An intense jurisprudential debate has come to an end, with the Supreme Court sentencing on 12 October 2015 that neither the Act of 29 July 1991 on the formal motivation of administrative acts, nor the general […]
When two employment contracts for temporary agency work for the same agency and the same user are only interrupted by one or more bank holidays or compensation days for bank holidays, then the day(s) will also have to be paid to the temporary agency worker. It is therefore no longer possible to circumvent the payment […]
The law on the protection of wages still considered the payment in cash to be the standard form of payment, although in practice, almost all wages are paid via bank transfer. The law has now been modified. From 1 October 2016 onwards, the payment of wages via bank transfer will be the fallback option, and […]
Under Belgian labour law, the 5-year statute of limitation applies to the non-payment of wages. As such, non-payment can be qualified as a criminal offence. According to the Brussels Labour Court of Appeal, the repetitive non-payment of wages constituted a so-called continued criminal offence, meaning that the statute of limitation only commences as of the […]
In 2014, the rules with regard to the notice periods in Belgium were drastically changed as a consequence of the so-called Unified Employment Status Act that aligned the notice periods for blue- and white-collar workers. This Act included a few derogations (i.e. shorter notice periods) to this unification, of which some were temporary in nature. […]
Personal data can be transferred to a third (i.e. non-EU) country, when this third country ensures an adequate level of protection for such data, according to the EU directive on the protection of individuals with regard to the processing of personal data. The European Court of Justice (ECJ) has now ruled that the ‘Safe Harbor […]
Croats no longer need a work permit to work in Belgium. A person who has been legally residing for more than 5 years in a EU country, no longer needs a work permit after 12 months of continuous employment in a ‘shortage profession’. In light of the current asylum crisis in Belgium and the rest […]
Some employees do not have a fixed working place and visit several places (e.g. customers) during the day. The European Court of Justice (ECJ) has now ruled that the time during which an employee travels between his home address and his first and last customer of the day, must, in principle, be regarded as working […]
Employees may be asked to work within a system of ‘standby duty’ in which their physical presence at the workplace or another location appointed by the employer is not required (e.g. waiting time at home with the possibility of being called up). On 18 May 2015, the Belgian Supreme Court ruled that when an employee […]
The government agreement included the intention to install a second month of guaranteed wage, to be paid by the employer to employees who are incapable of working due to illness or accident. This would entail a significant additional cost for employers, but a saving for the social security system. The measure was first postponed to […]
Some of the major new measures, which will be put in place for the coming years and which will need to be further detailed, include: increasing the competitiveness of companies: the employers’ social security contribution on wages will gradually be reduced from 33% to 25% and fiscal incentives will be offered to Small and Medium […]
The Brussels’ Labour Court of Appeal ruled on 13 February 2015 that an employer moving his operating unit to the Dutch-speaking region of Belgium must translate existing labour documents (in the case at hand a yearly bonus plan) into Dutch, even if these documents were valid at the time of their initial drafting, as they […]
The Belgian government has decided to increase the so-called “social and fiscal work bonus”. From 1 August 2015 onwards, workers with a lower income (up to 2,385 EUR gross) will receive a higher net wage due to a reduction of their social security and tax contributions. An Act in this respect has been voted on […]
The Law of 2 June 2015, amending the legislation on social elections, was published in the Belgian Official Gazette on 22 June 2015. This Law entered into force on the date of publication.
The Unified Employment Status Act aligning the notice periods for blue- and white-collar workers obliges the sectors of industry to enter into a CBA, at the latest on 1 January 2019, reducing the notice period or indemnity in lieu of notice for workers that are entitled to a notice period (or indemnity in lieu) of […]
In execution of the new legislation on salary freeze, two Royal Decrees have been issued, allowing, as of 1 January 2016: an increase of the nominal value of meal vouchers from 7 to 8 euro, free of social security contributions if the usual legal conditions are met; an increase of the annual maximum amount (indexed) […]
In December 2014, the age condition for time-credit at the end of an employee’s career has been modified from 55 to 60 years for the basic regime and from 50 to 55 years for some specific categories of workers (such as workers taking up time-credit in the frame of a restructuring, workers carrying out a […]
On June 4, 2015 a draft bill was presented in Parliament including a number of topics with regard to labour and social security law. This draft bill includes, amongst others, the government’s plan to introduce electronic eco-cheques similar to previously introduced electronic meal vouchers. Indeed, as of October 1, 2015 no paper meal vouchers may […]
Within the construction industry, every contractor will be jointly liable with any subcontractor he works with for the latter’s debts towards the social security office and tax authorities (information accessible via a database), unless he deducts 35% for social security debts and 15% for tax debts from the amount of the invoice due to the […]
The Federal Minister of Labour is conducting negotiations with the social partners to create a legal framework for nightwork in the e-commerce sector. The Minister will present a progress report on this proposition in June.
The Federal Minister of Labour is investigating whether the legal framework to ascertain the legal nature of the employment relationship (employment contract or self-employed status) should be altered in order to boost the fight against bogus self-employment.
As a consequence of several strikes in the last few months (notably train strikes), some political parties have suggested to legally define the right to strike and to determine the limits of minimal services in certain sectors, as this is today not legally defined in Belgium.
As regards a hot item in the media, namely the fact that employees on ‘bridging pension’ (unemployment regime with company supplement for older workers) should remain available for work, four drafts of Royal Decrees have been prepared to tone this debate down. These drafts exclude the employees already benefiting from bridging pension of this obligation […]
The Labour Court of Appeals of Antwerp ruled that such prohibition was not discriminatory in the sense of the Belgian anti-discrimination legislation and the EU Directive, since the same prohibition applied to all symbols of any religious, political or philosophical denomination within the company. The case was later brought before the Supreme Court, which now […]
The new laws on indexation leap and salary freeze to improve Belgium’s competition position have been voted and published within the Belgian Official Gazette.
The Labour Court of Appeals of Liège rejected the evidence gathered by a private detective, with respect to an employee who claimed to be entitled to a social security allowance because of his partial disability due to an industrial accident, while he was in fact able to work. The Court ruled that this evidence was […]
For employers with operations in multiple jurisdictions, litigation over disputes related to employment matters is a very real concern, which applies to every sector of industry, in every region of the world. This comprehensive publication includes contributions from 18 L&E Global firms and will be a valuable resource for all HR professionals.
Obesity constitutes one of the major public health issues of the 21st century. Its impact on employment related matters can hardly be overestimated. If a person’s obesity is considered a handicap, employers will have to provide reasonable accommodations to enable this person to have access to, participate in, or advance in employment, or to undergo […]
The European Union’s Youth Employment Initiative 2013 (YEI), launched to address the occupational challenges of young adults, is moving forward. The YEI is designed to allow the Member States to improve their policies by providing additional funding to fight youth unemployment, which has risen to unprecedented levels – the unemployment rates for young people in […]
On April 28, 2014, the Acts of February 28, 2014 and of March 28, 2014 and the Royal Decree of April 10, 2014, amending the Belgium legislation with regard to the well-being of workers, were published in the Belgian Official Gazette. The legislator now aims to protect workers not only against acts of violence, moral […]
The European Commission recently presented a new initiative to better protect over 217 million workers in the EU from work-related accidents and diseases. The Strategic Framework on Health and Safety at Work 2014-2020 identifies key challenges and strategic objectives for health and safety at work, presents fundamental actions and identifies crucial instruments to address these […]
L&E Global’s Global Employment Law Highlights Spring 2014 report covers the latest trends in employment law throughout the world. L&E Global remains committed to offering our clients, HR professionals and academics the most comprehensive legal insight from around the world, now and in the future.
An International Guide to Employment Law Across 26 Jurisdictions offers analysis on a host of employment law matters, ranging from hiring foreign nationals and business transfers to wages, annual leave and working time.
This comprehensive publication includes contributions from 15 L&E Global member firms and will be a valuable resource for all HR professionals.
L&E Global’s Special Report on International Restructurings covers the types of restructuring methods available to employers, provides statistical analysis on restructuring activities throughout Europe, North America, and the South Pacific, details efforts to improve or minimize restructuring and highlights restructuring trends in the L&E Global member countries. This report is an example of L&E Global’s […]
L&E Global’s Global Employment Law Highlights Spring 2013 report covers the latest trends in employment law throughout the world.
Non-compete clauses are an essential part of any contemporary employment contract. When conducting business in foreign jurisdictions, it is imperative that you understand and are aware of current employment laws concerning the implementation and use of non-competes. Below are ten points you should consider when executing a non-compete in The Netherlands, Belgium, Spain, Germany, France […]