Employment Law Review 2013/2014:
Belgium
Publication Date: 27 February 2014 Member Firm(s): Claeys & Engels
Country: Belgi...
2
Publication of unisex mortality table (XR).
In 2011, the European Court of Justice (ECJ) ruled in the Test Achats
case t...
3
encountered.
A royal decree may complete the nine legal criteria or replace them by
other criteria. In respect of four s...
4
• If so requested, within 14 calendar days after the notification, the
principal/contractor delivers to the employee rep...
5
Joint and several liability for the payment of the remuneration.
In 2012, the legislator introduced the joint and severa...
6
posted negative comments about his employer on his public Facebook
page was dismissed for serious cause without breach o...
7
Single employment status of blue-collar and white-collar employees.
With effect from 1 April 2014, dismissals of blue-co...
8
Flemish Language Decree.
A proposal of decree has been submitted to the Flemish Parliament to
adapt the Flemish Language...
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Employment law review 2013-2014: Belgium

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What significant changes were made to employment law in Belgium during 2013? What major reforms are in the pipeline for the year ahead?

With thanks to our Belgian member Claeys & Engels. Originally posted on: www.globalhrlaw.com

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Employment law review 2013-2014: Belgium

  1. 1. Employment Law Review 2013/2014: Belgium Publication Date: 27 February 2014 Member Firm(s): Claeys & Engels Country: Belgium What significant changes were made to employment law in Belgium during 2013? What major reforms are in the pipeline for the year ahead? Reforms taking effect in 2013 The most important law published last year was the Act of 26 December 2013, concerning the introduction of the single employment status of blue- collar and white-collar employees with respect to the notice periods and the first day of sick leave. New dismissal rules and abolition of the “carenz day” In July 2011, the Constitutional Court ruled that differences between blue- collar employees and white-collar employees with regard to notice periods and the first day of sick leave were discriminatory. The Court granted the legislator two years, until 8 July 2013, to clear away those differences in treatment and create a single employment status. The new status was eventually introduced by the Act of 26 December 2013 and entered into effect on 1 January 2014. The most important changes are: • new notice periods, applicable to both blue-collar and white-collar employees; • abolition of the trial period; • extension of the right to outplacement support; • Abolition of the “carenz day” (absence of guaranteed salary for the blue- collar worker’s first day of sick leave); and • transitional measures for employees who entered into service before 1 January 2014 An overview of the new notice periods is available on Claeys & Engels’ website (www.dismissal.be) which also enables you easily to calculate entitlements for all dismissals as of 1 January 2014.
  2. 2. 2 Publication of unisex mortality table (XR). In 2011, the European Court of Justice (ECJ) ruled in the Test Achats case that insurance contributions and benefits with regard to individual insurances must be gender neutral. Following this decision, a gender neutral mortality table (XR) has been published in the so-called “Life” Royal Decree. This table must be used to determine the contributions and benefits in new insurance agreements signed as of 21 December 2012. Limosa revisited. In December 2012, the “Limosa declaration” for self-employed workers was declared incompatible with EU law by the European Court of Justice. As a result, the relevant rules regarding the declaration have been refined. The Royal Decree of 19 March 2013 reintroduced the Limosa declaration requirement with effect from 1 July 2013 in a modified form, incorporating certain adjustments. However, it remains whether these changes are sufficient to comply with EU law. Margin for remuneration costs 2013-2014. A Royal Decree provided that the maximum margin for the evolution of remuneration costs for 2013-2014 is fixed at 0%, excluding remuneration indexation and possible remuneration scale increases. Free movement of workers within the European Union. The ECJ rejected the Flemish language legislation in the context of international employment relations. The Court considered that the requirement by a regional entity of a member state for every employer having a place of business within its territory to draft employment agreements with a cross-border nature exclusively in its official language, failing which the contracts are to be declared null and void by the national courts of their own motion, was likely to affect the free movement of workers. As a result of this ruling, the regional legislators of Flanders and Wallonia will have to review their decrees concerning the use of languages in employment relations. False self-employment. The Act of 25 August 2012 introduced a rebuttable presumption of the existence of an employment contract if a range of socio-economic criteria are present. The presumption applies when it appears from an analysis of the working relationship that more than half of the nine criteria have been
  3. 3. 3 encountered. A royal decree may complete the nine legal criteria or replace them by other criteria. In respect of four sectors - the building sector, the cleaning sector, the transport sector and the surveillance sector - such a royal degree was published in 2013. Employment of foreign workers. With the accession of Croatia to the European Union on 1 July 2013, the free movement of workers in principle became applicable to the nationals of that country. However, the Accession Treaty included a number of transitional arrangements to protect national labour markets. Accordingly, the Royal Decree of 24 June 2013 provided that Croatians will still need a work permit in order to be able to work in Belgium until at least 20 June 2015. However, the work restrictions on Romanian and Bulgarian migrants were lifted in January 2014. Temporary agency work. In 2013, Belgian legislation on temporary agency work was profoundly modified. The key changes were: • introduction of a new justification (inflow) for using temporary agency workers; • regulation of the use of daily contracts; • alterations to the rules concerning information on and control of temporary agency work; and • phasing out of the “48-hour rule” with respect to the signing of employment contracts for temporary agency work. Posting of employees within the framework of (sub)contracting. A number of strict conditions must be fulfilled in Belgium if a principal/contractor, in the context of the execution of a service agreement, gives instructions to the employees of the (sub)contractor. The principal/contractor must also immediately inform its works council about the existence of the service agreement. The Royal Decree of 17 July 2013 determines the procedure for this: • The principal/contractor immediately informs the secretary of the works council about the existence of the service agreement containing instructions. • The secretary, in turn, informs the members of the works council.
  4. 4. 4 • If so requested, within 14 calendar days after the notification, the principal/contractor delivers to the employee representatives a copy of the section of the service agreement containing the instructions. Joint and several liability and withholding obligation. By the Royal Decree of 17 July 2013, the government introduced the joint and several liability and the withholding obligation for social or fiscal debts of (sub)contractors in the sector for security and/or surveillance services. This legislation was already applicable in the construction sector. The principle entails that a principal or a contractor doing business with a (sub)contractor from the security sector and/or surveillance sector having social or fiscal debts, is jointly and severally liable for the payment of these debts. Measures to reduce the gender wage gap. In 2013, two acts aimed at combating the gender wage gap were published. They introduced certain measures requiring the reduction of the gap, the central idea being that this needs to become a permanent theme of the social dialogue on all levels (inter-professional, industry and company). New obligations for employers of non-EU citizens and joint and criminal liability if (sub)contractor works with illegal employees. As of 4 March 2013, employers of non-EU citizens must keep a copy of their residence permit available for the Social Inspection services. If not, a level 4 penalty (the highest criminal level) can be imposed. In addition, a complex system of joint liability for principals and contractors for remuneration debts in the event their (sub)contractor employs illegal workers has been introduced. Besides this, (sub)contractors now also risk incurring a level 4 penalty if their direct contractor employs illegal workers, unless they are in possession of a written statement by the subcontractor that it will not employ illegal employees and they are not aware of the illegal employment. They will also be sanctioned with a level 4 penalty if their indirect subcontractor employs illegal workers and they are aware of this. The same applies to the principal if its contractor or subcontractor employs illegal workers and it is aware of this.
  5. 5. 5 Joint and several liability for the payment of the remuneration. In 2012, the legislator introduced the joint and several liability of the principal or the (sub)contractor when it is established that the (sub)contractor seriously failed to comply with its obligations regarding payment of remuneration to its staff. In 2013, the Government determined that this joint and several liability applies to the following activities: security and/or surveillance; construction (including activities which are considered to be work to real property); agriculture and horticulture; cleaning; and meat processing. Working time: more flexibility. The law of 17 August 2013 concerning the modernisation of labour law executed the first segment of the social partners’ agreement on the flexibility of working time, including the following modifications: • increase of the internal limit (overtime hours) ; • increase of the credit of overtime hours that must not be compensated at the option of the employee; and • extension of the reference period for the working time determined in a collective bargaining agreement will from now on automatically be included in the labour regulations. Additional holidays. The system of "additional holidays" (better known under the term “European holidays”) was implemented by the Royal Decree of 19 June 2012. This allows a worker who is starting or restarting an activity to benefit from days off during the first working year (or the year in which work is restarted) or the following year (with deduction of ordinary vacation days to which he/she is entitled). In 2013, three Royal Decrees specified what is meant by "restarting activity". It applies in case of: • passing from a part-time to a full-time work regime; • increasing working time by the equivalent of 20 % or more of a full-time regime; and • restarting an activity after a period of parental leave. Negative comments on Facebook: Justifying a dismissal for serious cause? The Brussels Labour Court decided that an employee who regularly
  6. 6. 6 posted negative comments about his employer on his public Facebook page was dismissed for serious cause without breach of his privacy rights. Social security contributions on compensation paid to trainees working under professional immersion conventions, on non-compete payments and compensation for the loss of clientele. From 1 January 2013 trainees working under professional immersion conventions must be covered by the social security regime under the same conditions as apprentices. With effect from 1 October 2013, non-compete payments made under an agreement concluded within 12 months following the end of the employment contract have subject to social security contributions. This also applies to compensation for loss of clientele granted to sales representatives. Mandatory registration system at large construction sites. As from 1 April 2014, the main contractor at a large construction site will have to ensure that a registration system is in place at the site, because every person who enters the construction site will have to register his/her presence. All registrations will be sent to the Belgian Social Security for entry on its database. This obligation will only be applicable to “large construction sites”, being temporary and mobile construction sites with a total cost over 800,000 EUR (VAT excluded). The obligation to register will also be required for: • the building owner; • the project supervisor responsible for the design of the construction site; • the project supervisor responsible for the supervision of the construction site; and • the security coordinator of the construction site. What’s coming next? Before looking at the changes we foresee in 2014, it is worth noting that their successful implementation will be influenced by this year’s election result. The 2010 elections showed how the process of forming a new government can take some time. With that caveat in mind, the most significant reforms currently planned are outlined below.
  7. 7. 7 Single employment status of blue-collar and white-collar employees. With effect from 1 April 2014, dismissals of blue-collar and white-collar employees with more than six months of seniority need to be “motivated” by the employer (CBA no. 109 of 12 February 2014). The employer can communicate the motivation for the dismissal at its own initiative. If not, the employee can request a motivation by registered letter within two months following the end of the employment contract. Where the employment contract is terminated by giving notice, the employee’s request must be made within six months following the notification of the notice period, but no later than two months after the effective termination of the contract. In addition, when the dismissal of an employee with a permanent contract is considered to be “manifestly unreasonable”, the employer will be obliged to pay an indemnity of between three and 17 weeks’ remuneration (depending on the degree of the manifest unreasonableness of the dismissal). With regard to supplementary pensions, new pension plans can no longer make a distinction between blue- and white-collar employees and existing plans will have to be harmonised by January 2025. Other differences that exist between blue-collar employees and white- collar employees stay as they are for the time being – e.g. with regard to annual holidays, temporary unemployment, joint committees, social elections and occupational pensions. The “final compromise proposal” of 5 July 2013 stated that the social partners would take care of the other differences “in accordance with a compulsory timeframe”. At present, it remains to be seen how this will be taken forward. Pension reforms. The council of ministers has already approved various proposals for pension reform which still have to be introduced and discussed in Parliament. These include: the reform of the survivor’s pension; new measures concerning pensions for the public sector; changes to the way the pension will be calculated (the last months of the career will be taken into account); and a guaranteed pension for border and seasonal workers. The government is reportedly also planning to adopt a number of changes regarding occupational pensions, including new rules on the statute of limitations and access for all citizens to a centralised database of all occupational pension plans.
  8. 8. 8 Flemish Language Decree. A proposal of decree has been submitted to the Flemish Parliament to adapt the Flemish Language Decree to suit the ECJ’s ruling last year (see above). Social dumping. A plan against social dumping was approved in 2013 by the council of ministers. New measures concerning the prosecution and the aggravation of the penalties will have to be implemented in 2014. Reform of the Belgian banking sector. Changes to the remuneration policy of banks in Belgium will be implemented. Bonuses will be limited to 50% of salary and severance pay for leading bankers will be restricted to nine months' salary. Originally posted on the Ius Laboris Knowledge Base: www.globalhrlaw.com About Ius Laboris Ius Laboris is an alliance of law firms offering employers cross-border employment and pensions law advice. It has 1,300 specialist HR lawyers in over 150 cities and 44 countries. Ius Laboris offers access to the best local HR law experts in one global team with 20% more ranked employment lawyers (Chambers & Partners, November 2013) than any other global HR legal services organisation. Further, Ius Laboris has 50% more recommended lawyers than its nearest rival in a recent survey in PLC's employment law guide. Clients include many household names as well as multinational companies in all sectors ranging from energy, retail and technology to pharmaceuticals. For more information on Ius Laboris, please visit iuslaboris.com.

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