Employment relationship information
Information of an individual nature
Under the law of 7 October 2022, the employer must provide the employee with information on the main aspects of their employment relationship. More specifically, it concerns the following:
- The identity of the parties to the employment relationship;
- The place of the work;
- Information about the function that the employee mainly performs with the employer
- The start date of the employment relationship;
- The end date or expected duration if the employment relationship is of a fixed duration
- The salary, including the initial amount, other components, fringe benefits, payment method and frequency of payments;
- Information on the fixed or variable hours;
- The duration and details of the probationary period, if applicable;
- Information on the fixed or variable hourly schedule.
When the employee is going to work in another country for more than four consecutive weeks, the employer must provide additional information to the employee and do so before departure. Also in case of posting, the employer must provide additional information to the employee.
This information should be provided to the employee in one or more documents no later than the first day of employment. The most obvious way to provide this information is, of course, the employment contract itself. However, the employer can also provide the information through a document prepared unilaterally by the employer. In this case, the law requires the employer to keep proof of receipt. Thus, a simple Word file sent to the employee by e-mail is accepted.
Of course, a separate document containing the prescribed information cannot replace the mandatory content of the employment contract. The employment contract will logically have to include at least a provision on pay: after all, this is a core part of the employment contract. In a fixed-term employment contract, start and end should obviously also be mentioned.
From the date of entry into force of this Act, employers will have to provide the information via the employment contract or any other document. As regards employment contracts that already existed before the entry into force, the employer must provide the relevant information "within the period provided for by the aforementioned chapter" when the employee expressly requests it, i.e. 1 month.
In case of non-compliance, the employer risks a criminal fine of 400 to 4,000 euros or an administrative fine of 200 to 2,000 euros (to be multiplied by the number of employees involved). In our opinion, this sanction is only conceivable when services are started without any contract or document. If the information is incomplete or incorrect, a criminal fine of €800 to €8,000 or an administrative fine of €400 to €4,000 (to be multiplied by the number of employees involved) is imminent.
Many template employment contracts often contain extensive information on the employment relationship, limiting the impact of the law. If standard company contracts are more concise, more action will be required. As a rule, extending the text of the employment contract will be the simplest solution, but caution is needed. If the employee explicitly names (fringe) benefits (such as meal vouchers, group insurance, etc.) in the employment contract, it is advisable to always include a right of withdrawal. To avoid giving an acquired and contractual status to certain benefits, the employer can opt for to a "notice" via a separate document. A general reference in the agreement such as, for example, "the granting of all benefits set out in the relevant sectoral agreements" can be avoided if the company wishes to give a different interpretation to certain sectoral benefits.
Information of a collective nature
The law of 7 October 2022 also modifies the mandatory information in the work regulations. The following four elements must be mentioned in the work regulations:
- The procedure, including the formal requirements and notice periods, which the employer and the employee must observe if the employment relationship is terminated as well as the periods within which dismissal can be appealed or the reference to the legal or regulatory provisions governing these points;
- The reference to the collective bargaining agreements and/or collective agreements concluded in the company and applicable to working conditions and, as regards collective bargaining agreements concluded outside the company, the reference to the competent joint body in which they were concluded;
- The social security institution that receives the social contributions in the context of the employment relationship;
- The right to training offered by the employer or the reference to the legal or regulatory provisions or collective bargaining agreements that regulate it.
It should also be underlined that points 1 and 2 were already provided for in the current legislation and have only been updated. Moreover, this update has minimal impact on the content of the work regulations.
The reference to the deadlines within which dismissals can be appealed can be easily overcome by a reference to the deadline referred to in Article 15 of the Act on employment contracts of 1978.
The reference to the competent joint body in which the collective agreements were concluded seems to add little in practice. Indeed, most work regulations already refer to the competent joint committee(s).
No deadline is set for bringing existing work regulations into line with the new legislation. Since incomplete work regulations are punishable by an administrative fine of between €80 and €800 (to be multiplied by the number of employees concerned), we recommend making the necessary changes as soon as possible. Moreover, for points 1 and 2 mentioned above, the new law explicitly provides that the procedure to amend the labour regulations should not be followed. In our view this should also apply to point 3 despite the absence of any explicit mention in this regard.
Minimum requirements on working conditions
Employment contracts usually contain an exclusivity clause that prohibits employees from engaging in other professional activities without the prior consent of the employer. However, Article 20 of the new Act states the following: "The employer may not prohibit his employee from working outside his work schedule for one or more other employers or subject him to adverse treatment for that reason, except as permitted by law."
This article does not give a free pass to employees. Indeed, the new law does not prevent the employer from subjecting an employee's independent activities to prior authorisation. Moreover, under labour law, an employee is not allowed to compete with his employer during the term of his employment contract, even if it is fair competition. Finally, an employee, both during the contract and after its termination, is prohibited from:
- unlawfully obtaining, using or disclosing trade secrets, of which he may become aware in the course of his professional activities;
- committing or participating in acts of unfair competition.
Consequently, we recommend writing an appropriate clause in the employment contract that subjects ancillary activities to the necessary, permissible restrictions. By the way, Article 20 does not oblige the elimination or replacement of current exclusivity clauses. These will only become partially unenforceable by the new law, depending on the case. The sanctions provided for (criminal fine of 400 to 4,000 euros or an administrative fine of 200 to 2,000 euros) only apply if the employer were to enforce the too far-reaching exclusivity clause.
The new law obliges the employer, in specific cases, to offer training to its employee free of charge.
Indeed, this obligation only applies to training that is necessary for the performance of the work for which the employee was hired and when it must be provided in application of a legal regulation or a collective bargaining agreement. These compulsory training courses cannot be the subject of a training clause.
For example, one can think of training that must be followed by employees in the transport sector to obtain an “ADR certificate”.
Moreover, the employer will have to organize this training during working hours unless it can be shown that organizing it during working hours is impossible. This training time must be considered as working time.
Since this may represent a significant organizational and financial burden for the aggravation, it is appropriate for the sectoral funds to intervene in this wage cost. Moreover, it goes without saying that an employer can attach consequences to a refusal by employees to attend the compulsory training.
Transition to another form of employment
The law of 7 October 2022 allows an employee with at least six months of seniority with the same employer to request, in writing or electronically, a form of work with more predictable and secure working conditions. This request must be made concrete and precise. The same is already regulated by Collective Bargaining Agreement No 161 of 27 September 2022.
In the relevant regulatory texts, more predictable and secure conditions of employment are considered, for example:
- An open-ended employment contract instead of a fixed-term employment contract;
- A full-time employment contract instead of a part-time employment contract;
- A part-time employment contract with a larger number of hours instead of a part-time employment contract with a smaller number of hours;
- An employment contract with a fixed schedule instead of an employment contract with a variable schedule.
If the employer fails to give a reasoned answer (written or electronic) to the employee's question, he risks a criminal fine of 400 to 4,000 euros or an administrative fine of 200 to 2,000 euros.
An employee is obviously not supposed to make such requests every so often. The law therefore imposes that a request is only allowed once per 12-month period. In addition, the law expressly stipulates that the employee must refrain from any abuse. An employee who cannot justify his request in any way and only seeks dismissal protection (see below), clearly commits an abuse.
Maximum duration of the probationary period
Under Belgian labour law, probationary periods are only possible in employment contracts for the performance of temporary work, for temporary agency work and for student employment.
The trial period in employment contracts for temporary agency work and for the performance of temporary work is set at 3 days. It is specified that a different probationary period may be provided for provided that the duration of the agreed probationary period is proportionate to the expected duration of the contract and the nature of the work. It is also added that successive probationary periods are prohibited when an employee is employed in the same job through successive contracts to perform temporary work.
Variable schedules for part-time workers
Part-time workers may be employed under a variable hourly schedule. The legislation provides for certain time limits within which the hourly schedule must be communicated to these part-time workers. This is a deadline of five working days or a shorter deadline set by the sector with a minimum of one working day. The law containing various labour provisions, known as the Labour Deal, also increases this notification period to seven working days and three working days respectively.
The law of 7 October 2022 allows these part-time workers to refuse, without adverse treatment, to render service when:
- this service does not fit into a work schedule that was notified to them in time and/or;
- the service does not fall within the daily period during which work can be performed and the days of the week on which work can be performed.
The purpose of employing part-time workers on the basis of variable hours is obviously to manage, with a reasonable degree of flexibility, increases in production and work. These additional constraints make variable hours schedules less and less workable.
Protection against adverse treatment and dismissal
If the employee filed a complaint against the employer for a violation of the rights discussed, the employer may not subject the employee to adverse treatment. The employer may, of course, take action based on reasons not related to the complaint. Within 12 months of filing the complaint, the burden of proof rests on the employer. A lump sum compensation of six months' gross pay is provided.
The legislator goes very far and, moreover, even links dismissal protection to the new rules. Indeed, an employer may not dismiss an employee "who makes use of these rights" on pain of compensation of six months' gross pay, except for reasons no related to this complaint.
Consequently, an employer who files the aforementioned complaint or a request for more predictable and secure work is protected from dismissal. If there are other reasons (such as poor performance), the employer can of course proceed with dismissal without being liable to pay this protection fee, provided he can prove these reasons. However, it is to be expected that employees fearing dismissal will use these tools provided by the law to make a dismissal more difficult. This obviously cannot be the intention of the rules on transparent and predictable terms of employment.