TEN Q&A on labour law in Europe: Belgium

1. What types of employment contract are recognised in Belgium?

The following types of employment contract are recognised in Belgium:

• a fixed-term contract;
• an employment contract of indefinite duration;
• an interim or temporary contract;
• a contract for specified work; and
• a replacement employment agreement.

Fixed-term contract

A fixed-term employment contract is an agreement where the parties involved are released from their mutual commitments on a specified date, or after an event that must occur on a known date. The fixed-term employment contract must be in writing and signed before the employee enters service.

If the end date of the contract is not specified, the contract is automatically considered as an employment contract of indefinite duration.

A fixed-term employment contract ends automatically without warning or compulsory termination after the agreed period has passed. If the employer and employee continue to implement the employment contract, the rules for the employment contract of indefinite duration of time automatically apply.

Employment contract of indefinite duration

An employment contract of indefinite duration is not limited to a period of time.

This type of employment contract is the general default – if the employer and the employee have not anticipated anything about the duration of the agreement, it will automatically be considered an agreement for an indefinite period.

There are no mandatory formalities for this type of employment contract. They can even be closed orally, but it is better to record them in writing.

Interim or temporary contract

An employment contract for temporary work or temporary agency work can only be drawn up in specific cases:

• the replacement of a permanent employee;
• an extraordinary increase in work;
• the execution of exceptional work; or
• for certain artistic occasional performances.

A contract for temporary work is concluded by the employer himself and the employee, while a contract for temporary agency work is concluded through an employment agency.

These agreements can be concluded for a definite period of time or for clearly defined work, but also to replace a permanent employee.

They must be recorded in writing, and several consecutive temporary agreements may be concluded.

Specified work contract

This employment contract does not specify the precise duration, but the work to be performed, for example: acting in a certain film, fruit picking in a farm, or editorial work. Both parties can estimate the duration of the contract from the start of the agreement.

Before they start working, an employee must be given a precise description of the agreed work in order to accurately estimate its size and duration.

This type of contract must be recorded in writing, at the latest when the employee starts working. The contract ends automatically as soon as the agreed work is completed, without either one of the parties having to be notified.

Replacement employment agreement

A replacement employment agreement can be summarised as a contract to replace an employee whose own employment contract has been temporarily suspended, for example, in the event of a career break, but for reasons other than unemployment.

The contract must be recorded in writing and signed before commencement of employment. The reason for the replacement and the identity of the replaced employee must be indicated.

The parties can agree that the contract ends at the time when the replaced employee resumes their duties, be that with a shortened notice period or even without a notice period at all.

The duration of a replacement contract may not be longer than two years, except for the replacement of a person on a career break.

2. How can a contract of employment be terminated in Belgium?

The terms of legal cancellation vary according to:

• employee seniority;
• remuneration; and
• whether the employee resigned or was fired.

The cancellation period starts on the Monday following the week in which the cancellation is declared.

For example, an employee personally hands his resignation to his employer on the Wednesday of the 7th week of the year – the cancellation starts on the following Monday (or rather, the Monday of the 8th week of the year).

Absence during the cancellation period

During the notice period, the employee has the right to stay away from work while retaining wages to look for new work. The duration of the total absence may not exceed one working day per week (or two half days).

Termination compensation

The party that terminates the employment contract without an urgent reason, without notice of the notice period, or with an insufficient notice period, owes a compensation to the other party: the compensation notice.

3. Is it possible to employ employees as teleworkers in Belgium, and are there any particular regulations that apply (differentiating from other regulations)?

Since the implementation of the national collective agreement on telework in July 2006, teleworking has become the subject of increasing interest.

The provisions of the national collective agreement on telework, signed in 2005 (BE0512301N), became compulsory through the Royal Decree of 13 June 2006. These provisions took effect from 1 July 2006 and were subsequently extended to civil servants in November 2006.

The collective agreement defines the status of teleworkers and determines their working conditions. In doing so, it complements the 1996 Homeworkers Act, which aimed to cover all types of work at home; this includes those workers who are not specifically using information and communication technologies (ICT) to do their work, such as qualified nurses providing home care services.

4. What are the rights for women who become pregnant during their employment contract, and are they protected from being dismissed?

Prohibition of discrimination

Both during recruitment and during the employment contract, the employer must treat men and women equally. Motherhood should therefore not give rise to any form of discrimination. In principle, the employer may not ask any questions about a possible pregnancy during recruitment interviews, unless those questions would be relevant due to the nature or the conditions for exercising the position.

Alerting the employer

From the moment the employee becomes pregnant, she has every interest in informing her employer. From that moment on, there are a number of legal protection measures that come into effect. These relate to the employment conditions and to the health of the employee and her unborn child. For example, the pregnant employee has the right to be absent from work for a pregnancy.

Protection against dismissal

From the moment the employer is aware of the pregnancy, special protection against dismissal starts. From that moment on, the employer may no longer take any action to end the employment of the pregnant employee due to the fact that she is pregnant. This protection against dismissal runs until one month after the postnatal leave (including the extensions).

Ban on overtime and night work

Pregnant workers and workers who are breastfeeding may not work overtime. There are a number of exceptions to this rule, for example for the persons with a confidential post or persons with a managerial position who are mentioned in the legislation.

The employer cannot oblige a pregnant employee to perform night work during a period of eight weeks before the expected delivery date. Subject to the presentation of a medical certificate, the employee may also refuse night work during other periods of the pregnancy and for a maximum of four weeks immediately following the maternity leave. The employer is then obliged to give the employee day work or, if this is not possible, to suspend the performance of the employment contract.

Safety and health

The employer is obliged to carry out a risk analysis in collaboration with the occupational health physician.

Maternity leave

In principle, maternity leave lasts 15 weeks. The leave taken before the birth, the maternity leave or the prenatal leave, can last a maximum of six weeks. The rest that starts from the day of the birth, the maternity leave or the postnatal leave, must last at least nine weeks. If a multiple birth is expected, the prenatal leave can last eight weeks and the postnatal leave can also be extended by two weeks.

5. What types of paid days-off are the employees entitled to in Belgium?

For family events and civil obligations, absence days with pay are granted. In this context, legal cohabitants are treated as married couples.

Part-time employees are also entitled to short leave insofar as it concerns days that they would normally have worked.

Paternity leave has been extended from three days to 10 days, with seven days being paid via health insurance.

If you get married, in addition to the two legal days, you are also entitled to one additional day of leave, with retention of wages (in total three days).

Yearly holiday

Every employee is entitled to statutory vacation days. If you have worked a full year in advance (regardless of which employer), you are entitled to four weeks of vacation. This must be taken during the course of the calendar year (from January 1 to December 31).

If you have not worked for a full year, you are entitled to a number of vacation days in proportion to the period worked.

School-leavers are entitled to a four-week youth holiday on condition that they had a contract for at least one month in the year that they finished their studies and are at most 25 years old. More info about this at the LBC-NVK delegate or at the regional LBC-NVK secretariat.

Leave days

Seniority leave

In addition to the statutory annual vacation, every employee is entitled to additional vacation days depending on the number of years in the company.

These additional vacation days are calculated as follows:

• After 5 years of service in the company: 1 day.
• After 10 years of service in the company: 2 days.
• After 15 years of service in the company: 3 days.
• After 20 years of service in the company: 4 days.
• After 25 years of service in the company: 5 days.
• After 30 years of service in the company: 6 days.

More favourable arrangements exist for some companies.

Public holidays

Every year 10 legal holidays are guaranteed:

• January 1: New Year’s Day
• Easter Monday
• May 1: Labour Day
• Ascension Day
• Whit Monday
• 21st of July: Independence Day
• August 15: Assumption Day
• November 1: All Saints Day
• November 11: Remembrance Day
• December 25: Christmas Day

If the holiday coincides with a day (or half a day) on which people usually do not work, then this holiday must be replaced by another day (or half a day) to ‘catch up’.

Holidays that coincide with a Sunday also entitle employees to a replacement day, both full-time and part-time.

Replacement days are set by the works council or can be added to the annual holiday, or taken within two weeks before or after the public holiday in question.

6. Is it possible to include a non-competition clause in the employment contract, and what are the grounds for concluding a valid non-competition agreement?

To be valid, the non-competition obligation must:

• be in writing;
• relate to an employment contract in which the gross annual salary is more than €34,819 * (amount applicable from 1 January 2019) at the time of the termination of the contract;
• relate to similar activities;
• be geographically limited to places where the employee can actually compete with the employer (and in no case outside national territory);
• not run for more than 12 months from the date on which the employment relationship ended; and
• provide for the payment of a single and flat-rate compensatory allowance by the employer if, within 15 days after the end of the employment contract, he does not renounce the effective application of the non-competition clause.

* The following salary distinctions apply:

• Gross annual wage between €34,819 and €69,639 (amounts applicable from 1 January 2019): the clause is only valid if a collective labour agreement has been concluded that specifies the positions for which a non-compete clause can be applied. Such a collective labour agreement exists, for example, in the hotel business sector.
• Gross annual wage of more than €69,639: the clause is always valid except for the functions that were excluded by collective agreement.

The minimum amount of this allowance is equal to half of the employee’s gross wage, which corresponds to the duration of the clause.

For example: if a non-competition clause is provided for one year, the allowance amounts to at least six months of the gross salary.

These conditions are cumulative. If one of them is not met, the entire clause is void.

Elaboration

The clause takes effect:

• when the employment contract ends after the first six months from the start of it;
• in the event of dismissal at the initiative of the employer for an urgent reason on behalf of the employee;
• in the event of dismissal on the initiative of the employee for no urgent reason on behalf of the employer;
• by mutual agreement; or
• at the end of the period or by the completion of the agreed work.

The clause has no effect:

• in the event of termination during the first six months from the commencement of the agreement;
• in the event of dismissal at the end of this six-month period at the initiative of the employer for no urgent reason on the part of the employee; or
• in the event of dismissal at the end of this six-month period at the initiative of the employee for an urgent reason on behalf of the employer.

If the employee violates a valid non-competition obligation that has an effect, he must repay the single and lump-sum compensatory amount to the employer and must also pay an equivalent amount as compensation. The court may possibly reduce or increase the amount of this compensation.

Special rules

With regard to the non-competition clause, specific rules apply to:

• trade representatives; and
• certain employees employed by companies with an international field of activity or with important economic, technical or financial interests on international markets, or who have their own research service.

7. What happens to employees if their employer goes bankrupt in Belgium, and are they entitled to severance pay?

Conditions for the award of a closure fee

The employee, who is dismissed as a result of the closure of their company, is entitled to a closure allowance providing they:

• are bound by an employment contract of indefinite duration;
• have a seniority of at least one year in the company* (the seniority condition must be met on the day on which the notice period starts to run or, in the event of termination without notice, on the day the employment contract is terminated);
• have not been fired for urgent reasons;
• have been dismissed by the employer or have resigned due to facts that constitute an urgent reason for the employer:
  • either during the 12-month period (workers) or 18-month period (employees) prior to the closing date;
  • either on the date of the closure of the enterprise or on the date of the transfer of the operating location or the merger of the enterprise;
  • or in the 12-month period following these dates (the latter period is raised to three years for employees participating in the company’s liquidation work);
• are not immediately employed by another person in the company or at the hands of their employer while retaining wages and seniority – if this is the case, the employee concerned is nevertheless entitled to the severance payment if he is dismissed by this new employer within a period of six months;
• have refused such a written offer for employment, accompanied by a written commitment from the employer who wishes to employ him.

*For the calculation of seniority in the company, account must be taken of the period during which the employee remained in the service of the same company without interruption, as well as the periods of involuntary unemployment, immediately preceded and followed by a period of employment in the same company. The periods of employment at another employer are assimilated to periods of employment at his employer, on condition that the employee has accepted this position in order to escape unemployment and that he has subsequently returned to his first employer.

NB: The termination of the employment contract takes place at the moment that the employer signifies the dismissal and not at the moment of the effective termination of the employment relationships.

Remark: The Management Committee of the Closing Fund can decide that the closing allowance is also granted to employees whose performance of the employment contract has been suspended on the closing date and who cannot resume their work after this suspension period.

Exclusions

The following employees cannot claim a closure allowance:

• an employee who does not meet the aforementioned conditions (for example, through resignation);
• an employee who has reached the age of 65;
• an employee who, prior to or as a result of the closure, benefits from the guarantee from the Closing Fund for the payment of an additional compensation in the case of early retirement;
• an employee who meets the conditions to be entitled to a bridging allowance – this is paid to certain employees who are taken over after a takeover of the assets of a bankrupt company and whose payment is charged to the Closing Fund (see below).

Amount of the closure fee

The closing allowance is composed of a basic amount (calculated on the basis of the seniority of the employee) and, if applicable, an allowance (calculated on the basis of the age of the employee).

The basic reimbursement is €153.80 (from 1 December 2012) per year of seniority in the company with a maximum of €3,076.

A bonus that also amounts to €153.80 (from 1 December 2012) is awarded to the employee per year of life above 45 to a maximum of €2,922.20 (provided that the employee was employed by the company for these years).

These amounts are updated in relation to fluctuations in the consumer price index.

8. Are there any courts specially appointed for the purpose of dealing with labour law matters in Belgium?

The court of labour deals with labour law matters in Belgium, while appeals are heard by the court of appeal.

9. In the event that an employee is a debtor in enforcement proceedings in Belgium, to what extent is it possible for a bailiff to seize remuneration?

The income brackets susceptible to seizure and transfer for the year 2019 are as follows:

Net monthly wage	Replacement income	Professional income
up to € 1,128.00	0%	0%
from 1,128.01 to € 1,212.00	20%	20%
from € 1,212.01 to € 1,337.00	30%	30%
from € 1,337.01 to € 1,462.00	40%	40%
above € 1,462.00	All	All

 

If the employee has dependent children, they can benefit from an immunization of the parts that can be attached or transferred, or a deduction of €70 (for the year 2019) per dependent child on the total amount of the eligible for attachment or transfer section.

However, this limitation has two exceptions (the totality of the income can therefore be eligible for attachment or transfer):

• in the event of seizure or transfer pursuant to a claim for payment of the maintenance fee in application of articles of the Civil Code, listed in Article 1412 of the Judicial Code;
• in the event of attachment or transfer pursuant to a claim for payment of the wage pursuant to an authorization for receipt, namely a judicial authorization whereby the spouse or ex-spouse of the employee is granted the right to personally pay all or part of the employee’s salary directly from the debtor.