Labour and Employment Comparative Guide

• Published date: 29 June 2021
• Subject Matter: Employment and HR, Contract of Employment, Discrimination, Disability & Sexual Harassment, Retirement, Superannuation & Pensions, Unfair/ Wrongful Dismissal, Health & Safety, Employee Benefits & Compensation, Redundancy/Layoff, Employment Litigation/ Tribunals, Employee Rights/ Labour Relations, Outsourcing, Whistleblowing
• Law Firm: Bird & Bird
• Author: Cecilia Lahaye and Anton Aerts

1 Legal framework

1.1 Are there statutory sources of labour and employment law?

Yes. The primary sources of labour and employment law are statutory laws, such as:

• the Act on Employment Contracts (1978);
• the Labour Act (1971), on working time and conditions;
• the Act on Collective Bargaining Agreements and Joint Committees (1968); and
• the Act on Annual Holidays (1971).

Belgian employment law operates under a strict hierarchy of sources of law. These include:

• mandatory statutory law over collective bargaining agreements rendered binding by royal decree;
• collective agreements to which the employer is a party;
• individual written employment contracts;
• non-binding collective agreements;
• work regulations;
• non-mandatory legislation;
• individual oral contracts; and
• customs.

The higher source overrules the lower unless the higher source sets forth only minimum standards from which the employer can deviate in favour of the workforce (eg, regarding weekly working time).

1.2 Is there a contractual system that operates in parallel, or in addition to, the statutory sources?

Yes. As employment contracts are a specific kind of civil law contract, the basic principles of general contract law also apply, unless overruled by specific labour law provisions that seek to protect the employee. See the hierarchy of sources of law set out in question 1.1. Hence, while force majeure can free both parties from their obligations under general contract law, an employment contract can be terminated on account of force majeure only under specific stringent conditions - that is, on the conclusion of a process whereby an occupational health specialist has duly established the employee's inability to perform the contract.

1.3 Are employment contracts commonly used at all levels? If so, what types of contracts are used and how are they created? Must they be in writing must they include specific information? Are implied clauses allowed?

Yes. Employment contracts are commonly used from the lowest level employee up to the chief executive officer (CEO) of the company. However, people with higher managerial functions (eg, CEO, chief financial officer) may prefer to work as self-employed under the terms of a management/consultancy contract, either under their own name or via a self-owned management/consultancy services company. Contracts can be for a definite period (or a specific project) or an indefinite period. The former, as well as part-time contracts, must be in writing and clearly set out respectively the duration of the contract and the scope of the part-time contract. Failure to abide by the strict rules leads to the 'default position' - that is, a full-time contract for an indefinite term. If a contract is not in writing, it will be presumed to have been entered into for an indefinite period of time and on a full-time basis. Any contractual clause that would impose additional obligations on the employee or restrict employee rights beyond the limits set out in the Act on Employment Contracts will by law be deemed null and void.

2 Employment rights and representations

2.1 What, if any, are the rights to parental leave, at either a national or local level?

Parental leave - that is, the right to interrupt one's professional career to look after a child before he or she reaches the age of 12 (or 21 for disabled children) - is awarded to workers in most sectors of industry.

2.2 How long does it last and what benefits are given during this time?

Depending on the sector of industry, benefits may vary, but overall a full-time or part-time employee can take four months' leave. A full-time employee can also choose to work part time over a period of eight months, or work four days per week over a period of 20 months (one-fifth decrease), or half a day every week/one day a fortnight (one-tenth decrease). The employee may be entitled to (lump-sum) benefits paid by the National Employment Office.

2.3 Are trade unions recognised and what rights do they have?

Yes. In addition to some sector-specific trade unions, there are three major trade unions (Socialist, Christian and Liberal) which by law are deemed representative in Belgium, because they operate in all business sectors...