Questions For The International Comparative Legal Guide To: Employment & Labour Law 2011

Author:Mr Jan Hofkens and Alexander Vandenbergen

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...

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