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1880 results in Employment Law

Page 57 of 94

  • Chapter 2 - Special Employment Contracts

  • from V - SPECIAL AND DEVIATING TYPES OF EMPLOYMENT CONTRACTS
  • Patrick Humblet, Marc Rigaux
  • Book:
    Introduction to Belgian Labour Law
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    11 August 2016, pp 167-174

  • Summary

    SECTION 1. TEMPORARY WORK, TEMPORARY AGENCY WORK AND HIRING OUT

    Article 11ter Employment Contract Act offers the opportunity to replace an employee whose employment contract has been suspended for another reason than lack of work for economic reasons, bad weather conditions, strike or lockout. Apart from that there are a number of employment schemes which can also offer a solution to a temporary lack of personnel, more specifically the employment contract for the performance of temporary work, temporary agency work and the hiring-out of employees.

    This matter is regulated by the Law of 24 July 1987 regarding temporary work, temporary agency work and the hiring-out of employees on behalf of the user, and Collective Agreement No. 108 of 16 July 2013 concluded in the National Labour Council regarding temporary work and temporary agency work.

    TEMPORARY WORK

    Temporary work is the activity that is carried out on the basis of an employment contract and whose aim it is to see to the replacement of a permanent employee or to meet with a temporary increase in the work load or to carry out an exceptional task.

    An employer cannot use the system of temporary work if the suspension is the result of a lack of work for economic reasons or bad weather conditions.

    The employment contract for the performance of temporary work is concluded for a fixed term, for a specified task, or to replace a permanent employee.

    The contract must be laid down in writing, at the latest, at the time the employee commences work. The reason for the replacement and, if applicable, the duration of the agreement, must be included in the contract. In the absence of a document the rules of open-ended employment contracts apply.

    However, in such a case the employee can terminate the contract within seven days of the commencement of employment without giving notice or paying compensation.

    Barring a conflicting contract, the first three days are considered to be a probationary period. Until the expiry of that period each of the parties may terminate the contract without notice or compensation.

  • Chapter 5 - Collective Labour Agreements

  • from III - INSTRUMENTS FOR SOCIAL DIALOGUE
  • Patrick Humblet, Marc Rigaux
  • Book:
    Introduction to Belgian Labour Law
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    11 August 2016, pp 231-246

  • Summary

    Belgium uses legally binding collective labour agreements. In this regard it is important to note that the representative unions have a monopoly for concluding such agreements. They also conclude collective labour agreements at enterprise level. Limiting representativeness to the three major unions has been very important in terms of social stability as there is little or no competition between the various unions.

    SECTION 1. ORIGIN OF THE COLLECTIVE LABOUR AGREEMENTS ACT

    The oldest collective labour agreement can be traced back to the agreement on pay and working conditions concluded by employers and workers in the cloth industry of Verviers in September 1789.

    However, the Le Chapelier Act complicated all further experiments of this nature so that only 19 agreements of this kind were concluded between the fall of the Ancien Regime and the First World War.

    In 1919, the country was rocked by a significant outbreak of collective conflicts despite the government's commitment to new social policy. Thousands of blueand white-collar workers went out on strike. In order to stabilise the country the government tried arbitration to force workers to reach a solution. As the situation did not improve, the authorities set up joint committees in the mines and the metallurgical industry where strikes were the most vehement, to examine the possibility of cutting working time. This process of institutionalised consultation was applied many times in the years to come. In 1939, roughly 47 committees of this kind were active. Their consultative structure was ideal for concluding collective labour agreements.

    During the period between the two World Wars, a lot of attempts were made to grant legal status to collective labour agreements, but for various reasons these failed.

    The biggest problem relating to collective labour agreements was the question as to what extent these conferred rights to workers. This problem was partly solved by Articles 12 and 13 of the Decree Law of 9 June 1945. These enabled joint committees or unions to request, by way of Royal Decree, that the individual standard provisions of a collective labour agreement be granted binding effect erga omnes.

  • Chapter 1 - Recruitment

  • from II - CONCLUDING THE CONTRACT
  • Patrick Humblet, Marc Rigaux
  • Book:
    Introduction to Belgian Labour Law
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    11 August 2016, pp 13-20

  • Summary

    Recruitment is free. The employer's freedom of recruitment stems from the freedom of enterprise which is legitimised by the private ownership of the means of production. However, the freedom of recruitment is not absolute. It is subject to general rules of law and to specific regulations.

    SECTION 1. OBLIGATION TO RECRUIT CERTAIN CATEGORIES OF WORKERS

    As a result of their weak(er) position in the labour market it is hard for certain workers to enter employment on their own. This is mainly the case for people with a physical or economic handicap. In order to prevent these categories of workers from being excluded the legislator has issued a number of measures to promote or to impose recruitment of these persons.

    For instance, private sector employers employing over 50 employees must recruit workers pro rata of 3% of their personnel. Moreover, all employers in the private sector together and, this irrespective of their number of employees, must recruit new employees pro rata of 1% of the total personnel. The type of persons eligible for these extra jobs may vary. At present they are jobseekers under the age of 26. In the past persons from other age categories also qualified. Apart from this, labour law contains a few other situations in which employers are obliged to recruit.

    SECTION 2. PROHIBITION OF DISCRIMINATION

    THIRTY YEARS OF DISCRIMINATION LEGISLATION

    The first prohibition of discrimination in the national legislation referred to discrimination on the basis of sex.

    Equal treatment of men and women is a fundamental right which had already been formulated in Article 119 EC Treaty (now 157) in the form of the obligation to remunerate men and women equally for equal work. The ban on sex discrimination was further elaborated in various Directives. The principles in question were transposed into Belgian law in the Law of 4 August 1978, which was amended by the Law of 7 May 1999 (the Equal Treatment Men and Women Act).

  • Preface

  • Patrick Humblet, Marc Rigaux
  • Book:
    Introduction to Belgian Labour Law
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    11 August 2016, pp v-vi

  • Summary

    This book gives an overall picture of the principles of Belgian labour law, i.e. employment law as well as industrial relations law. It is intended for all those who want to get acquainted with Belgian labour law: foreign law firms, entrepreneurs who want to invest in Belgium, etc. That is the reason why this book focuses on topics that are relevant in practice.

    Foreign readers who are interested in specific aspects we refer to the footnotes and to the concise bibliography at the end of this book; they may also contact us by email: patrick.humblet@ugent.be.

    Belgian case law and doctrine are mainly published in Dutch and French. The odds are that the reader is not fluent in the first of these languages. Therefore we chose to limit the bibliographical material to the sources written in French.

    Finally, the authors wish to express their gratitude to Elizabeth MacDonald, Sofie Moentjens and (especially) Erika Peeters for the translation.

  • Chapter 1 - Employment Contracts within the Scope of the Law of 3 July 1978

  • from V - SPECIAL AND DEVIATING TYPES OF EMPLOYMENT CONTRACTS
  • Patrick Humblet, Marc Rigaux
  • Book:
    Introduction to Belgian Labour Law
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    11 August 2016, pp 155-166

  • Summary

    SECTION 1. THE EMPLOYMENT CONTRACT FOR SALES REPRESENTATIVES

    The provisions of the Employment Contract Act regarding white-collar workers also apply to sales representatives, except for the rules on the competition clause. However, since this group of employees deliver very specific services, the Employment Contract Act devotes a separate title (Title IV) to them.

    WHAT IS A SALES REPRESENTATIVE?

    The employment contract for sales representatives is the agreement under which an employee, i.e. the sales representative, undertakes, in return for wages, to find and visit customers with a view to negotiating and completing transactions, with the exception of insurance policies, under the authority of, chargeable to, and on behalf of, one or more principals.

    A number of persons working for principals and performing activities bearing resemblance to those of sales representatives are nonetheless not considered to be sales representatives. The legislator specifically stipulated this for: persons working in the insurance business, agents, brokers, concessionaires, middlemen allowed to pass on their orders to whomever they like, and the commercial agents bound to their employer by a contracting agreement within the meaning of the law regarding an agency agreement, a mandate for wages or any other agreement pursuant to which a commercial agent does not act under the authority of his/her principal.

    Despite any explicit or implicit provision of the agreement, a contract concluded between a principal and a middleman, whatever his description, is considered to be an employment contract for sales representatives unless proof to the contrary is given. Thus, the judge is not bound by the qualification the parties themselves allocated to the contract.

    THE SALES REPRESENTATIVE's WAGES

    The wages of a sales representative consist of a fixed salary, a commission, or partly a fixed salary and partly commission.

    Commission: concept and basis for calculations

    A commission is a variable wage calculated on the basis of the turnover made by the sales representative, the work done, etc.

    A distinction is made between direct and indirect commissions.

    Direct commissions are due for orders completed by the sales representative himself/herself. Indirect commissions are due for orders completed without his/ her intervention but for which remuneration is due because an exclusivity clause was included in the agreement.

  • Chapter 3 - The Union Delegation

  • from III - INSTRUMENTS FOR SOCIAL DIALOGUE
  • Patrick Humblet, Marc Rigaux
  • Book:
    Introduction to Belgian Labour Law
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    11 August 2016, pp 221-228

  • Summary

    SECTION 1. CONCEPT AND SITUATION

    The union delegation is a body representing union members at enterprise level.

    Before the Second World War, unions already had representatives in large companies, albeit only informally. After the War, when the establishment of a works council became obligatory, the legislature also sought to give legal status to the union delegation. The National Labour Conference of 6 July 1946 charged the General Joint Council with establishing general principles on the rights and obligations of the union delegation. The General Joint Council's efforts resulted in the agreement of 16 - 17 June 1947, concluded between representative employees’ and employers’ organisations. Although it did not have force in law, it resulted in collective labour agreements in almost all sectors. These collective labour agreements worked out a status for union delegations.

    In 1963, the then Minister of Employment, Servais, tried unsuccessfully to award legal status to union delegations.

    When in 1968, the Collective Labour Agreements Act authorised the National Labour Council to conclude collective labour agreements at national level, the social partners used this opportunity to grant full legal status to the union delegation. Thus, on 24 May 1971, fifty years after the Freedom of Association Act, Collective Agreement No. 5 was concluded in the National Labour Council.

    SECTION 2. FRAMEWORK AGREEMENT

    Collective Labour Agreement No. 5 is a framework agreement, i.e. its provisions contain generally formulated minimum rules. These provisions have to be developed more specifically in collective labour agreements concluded in joint (sub-)committees or at enterprise level. The only restriction is that they have to be developed in accordance with basic provisions.

    Collective Labour Agreement No. 5 contains a number of concrete obligations and general principles.

    CONCRETE OBLIGATIONS

  • a. the obligation to set up a union delegation, when this has been requested by one or more unions (Art. 7);

  • b. the right of the unions to appoint candidates (Art. 7, 10, 16);

  • c. the status of members of the union delegation (Art. 18–20);

  • d. the competence of the union delegation (Art. 11–14);

  • Chapter 4 - Supranational Consultation

  • from III - INSTRUMENTS FOR SOCIAL DIALOGUE
  • Patrick Humblet, Marc Rigaux
  • Book:
    Introduction to Belgian Labour Law
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    11 August 2016, pp 229-230

  • Summary

    The European Works Council

    The provisions of Directive 94/45/EC to promote the right to information and consultation of workers in undertakings and groups of undertakings in the European Union and the European Economic Area were transposed into Belgian law by Collective Labour Agreement No. 62 of 6 February 1996. Two additional laws of 23 April 1998 dealt with the protection against dismissal of employee representatives and the confidential nature of information communicated by the enterprise. The new Directive 2009/38/EC was transposed into Belgian labour law by Collective Agreement No. 101 of 21 December 2010. This collective agreement is largely similar to the Directive.

    Employees’ representatives in the European Company

    Council Directive 2001/86/EC of 8 October 2001, which regulates the cooperation between companies and employees’ organisations in the Societas Europaea, was transposed by the Royal Decree on Labour Relations of 1 September 2004. The Directive was transposed by the National Labour Council on 6 October 2005 by way of Collective Labour Agreement No. 84. Simultaneously, Collective Labour Agreement No. 62ter incorporated Article 3bis into Collective Labour Agreement No. 62 on the establishment of a European Works Council. When a company complies with the conditions of Collective Labour Agreement No. 84, a European Works Council no longer has to be set up separately.

    The role of employees in a European Cooperative Society (SCE)

    Directive 2003/72/EC of 22 July 2003 supplementing the statute of a European Cooperative Society with regard to the role of employees was implemented by Collective Agreement No. 88 of 30 January 2007. Basically, the regulation is nearly analogous to that of Collective Labour Agreement No. 84.

  • Chapter 1 - Defining the Contract of Employment

  • from I - THE CONTRACT OF EMPLOYMENT
  • Patrick Humblet, Marc Rigaux
  • Book:
    Introduction to Belgian Labour Law
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    11 August 2016, pp 3-4

  • Summary

    The contract of employment is an agreement in which an employee undertakes to work for wages under the authority of an employer.

    The Employment Contract Act regulates the employment contracts for bluecollar workers, white-collar workers, sales representatives, servants, students and home workers. It also applies to workers employed by the government insofar as their position is not laid down by specific legislation.

  • Chapter 4 - Formal Requirements

  • from II - CONCLUDING THE CONTRACT
  • Patrick Humblet, Marc Rigaux
  • Book:
    Introduction to Belgian Labour Law
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    11 August 2016, pp 27-28

  • Summary

    With regard to a number (of terms) of employment contracts the legislator has imposed certain formal requirements. As a rule these refer to the requirement of a document or obligatory statements within this document. They are not so much intended to facilitate the furnishing of proof but rather aim at a better protection of employees. The sanctions applied clearly demonstrate this. In the event of noncompliance with the formal requirements these sanctions often prescribe a legal situation which is more favourable to the employee than that in which he/she would have found himself/herself if the formal requirement had been respected.

    SECTION 1. PRINCIPLES

    An open-ended employment contract does not necessarily need to be laid down in writing. If the opposite has not been explicitly recorded in writing, every contract of employment is supposed to be for an unlimited period.

    Conversely, all other employment contracts must be laid down in writing, such as the fixed-term employment contract, a contract for a specified task, or a contract for a replacement.

    The same applies to – despite the unlimited period – student contracts46 and contracts for part-time employment.

    All written employment contracts must be drawn up in duplicate and signed, at the latest, at the moment of commencement of the employment.

    SECTION 2. ELECTRONIC SIGNATURE

    An electronically signed employment contract is put on a par with a signed employment contract on paper, provided that it is archived with a records department.

  • Chapter 1 - Termination of the Employment Contract

  • from IV - TERMINATION OF EMPLOYMENT
  • Patrick Humblet, Marc Rigaux
  • Book:
    Introduction to Belgian Labour Law
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    11 August 2016, pp 115-152

  • Summary

    SECTION 1. MANNERS OF TERMINATION IN ACCORDANCE WITH CIVIL LAW

    Sometimes the term ‘dismissal’ is used in the sense of ‘termination’ and therefore also includes the methods of termination according to civil law.

    The most common civil law techniques are:

  • - the dissolution of the employment contract;

  • - mutual consent;

  • - termination as a result of force majeure;

  • - nullity.

    • DISSOLUTION OF THE EMPLOYMENT CONTRACT

    Forms

    The term ‘dissolution’ refers to a complex of techniques, approached in different ways that lead to the termination of the contract, whether or not this is after judicial intervention.

    Legal doctrine usually distinguishes between the resolutory term, the judicial dissolution because of inadequacy, the express avoidance clause and the resolutive condition.

    Resolutory term

    A resolutory term is understood to mean the future and certain event on which the claimability and liquidation of the debt depend. The occurrence and completion of the event may not emanate from one of the contracting parties.

    In accordance with Article 32 Employment Contract Act it is permitted to include a resolutory term in an employment contract. Usually employment contracts with a resolutory term are fixed-term employment contracts. However, the legislator has seen to it that the use of such a provision is prohibited in certain situations.

    For instance, the parties are not allowed to include a clause in the employment contract introducing a resolutory effect when an employee reaches the retirement age. In addition, both the Civil Code and the Employment Contract Act forbid the conclusion of an employment contract for life.

  • Chapter 4 - Settlement of Industrial Disputes by the Courts

  • from V - INDUSTRIAL ACTION
  • Patrick Humblet, Marc Rigaux
  • Book:
    Introduction to Belgian Labour Law
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    11 August 2016, pp 263-264

  • Summary

    SECTION 1. GENERAL OVERVIEW

    Since the mid-1980s, employers have occasionally turned to the courts to seek judicial intervention in industrial disputes. For example, when a plant is blocked by a picket line, the court is asked to forbid this on the grounds of, among other things, the right to work.

    The majority of legal scholars believe that it is not incumbent on the judiciary to settle industrial disputes. Such conflicts should be solved through the appropriate channels, for example conciliation bureaus.

    As a rule, employers never ask the courts to end an industrial dispute, but to stop certain forms of strike action which are held to violate subjective rights – qualified by some as ‘acts of violence’. Refusal to intervene would constitute a breach of Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, and Article 14 of the International Covenant on Civil and Political Rights. Nowadays the courts’ intervention is no longer contested.

    SECTION 2. PROCEDURE

    The question arises as to which court has jurisdiction. Although labour tribunals would seem the most appropriate, employers usually appeal to courts of first instance. Employers generally apply for a summary procedure by means of ex-parte proceedings. They resort to such action because, unlike in the Netherlands, for example, they cannot prosecute the unions involved in collective action because these have no legal personality and because the identity of the members of the striking pickets is often unknown.

    Employers claim damages to ensure that striking pickets follow the opponent's instructions. Amounts vary.

    If the court follows the employer's reasoning, the former will order the picketers to end their action.

    This order is remitted to a bailiff. The latter takes the writ to the enterprise where the industrial dispute is taking place and serves it on the persons guilty of the alleged offence.

    To ensure compliance with the court order, the plaintiff will usually request the police to check the picketers’ identities. Refusal to comply with this request may result in the payment of damages.

  • In Cauda

  • Patrick Humblet, Marc Rigaux
  • Book:
    Introduction to Belgian Labour Law
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    11 August 2016, pp 265-266

  • Summary

    When this book was written in the spring of 2016, it became known that within the government there were plans to reform labour law thoroughly. In this reform the emphasis would be on more flexibility on the part of the employee (especially) with regard to working hours, a change of the rules and regulations with regard to telework and dismissal law. The termination pay will probably be replaced by a transition pay which is meant to support the employee in finding a new job. However, it is still unclear how these principles will/can be transposed into legislation.

  • Chapter 2 - Settlement of Industrial Conflicts by Mediation and Conciliation

  • from V - INDUSTRIAL ACTION
  • Patrick Humblet, Marc Rigaux
  • Book:
    Introduction to Belgian Labour Law
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    11 August 2016, pp 255-258

  • Summary

    SECTION 1. CONCILIATION AND MEDIATION

    Mediation means settling a dispute with the help of an objective third party. It usually covers dispute resolution procedures such as arbitration and reconciliation.

    In arbitration, a third person is asked to issue an opinion on the grievances of the conflicting parties on the basis of the information given to him. His opinion is legally binding on the two parties.

    In the case of conciliation, the intervention of the third party or mediator goes much further: he is expected to reconcile the conflicting parties.

    Arbitration is almost never used as a dispute resolution mechanism in Belgian industrial relations. The legislator and the social partners have clearly opted for conciliation.

    SECTION 2. CONCILIATION PROCEDURES

    As in most other Western European legal systems, Belgium has no legal conciliation framework for the uniform settlement of industrial disputes.

    However, in most sectors the social partners have developed dispute resolution procedures. These are outlined in collective labour agreements or the rules of the joint committees and their conciliation and mediation services.

    Conciliation procedures may figure in purely procedural collective labour agreements or in collective agreements establishing the legal status of the union delegation. In certain branches of industry the procedures are linked to the social peace obligation clause included in the collective labour agreement establishing the setting up and financing of a sectoral social security fund. If workers fail to respect the procedure in the case of an industrial dispute, employers stop their contributions to the said fund.

    Most of the of conciliation procedures are similar. As a general rule, they consist of the following elements:

  • meeting between the union delegation and the head of the enterprise;

  • full-time union officials and employer representatives are informed of the negotiations at enterprise level;

  • intervention of the joint committee's conciliation bureau;

  • negotiation in the joint committee;

  • a second attempt at conciliation;

  • notice of strike or lock-out; and

  • intervention by the official (social) conciliator.

  • Chapter 1 - Historical Overview

  • from I - FREEDOM OF ASSOCIATION
  • Patrick Humblet, Marc Rigaux
  • Book:
    Introduction to Belgian Labour Law
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    11 August 2016, pp 177-178

  • Summary

    The provisions on the freedom of work and industry set out in the Le Chapelier Law were upheld in Article 6 of the Law of 22 Germinal year XI and subsequently adopted in the Napoleonic Penal Code of 1810.

    Article 414 of the Penal Code penalised any employer coalition devised to lower wages, with prison sentences ranging from six days to one month, and a fine of between 200 and 3,000 francs. Work stoppages and preventing persons willing to work from working were prohibited by Article 415. Violations were punished with one to three months’ imprisonment, and leaders risked two to five years’ imprisonment. Such penalties were also imposed by Article 416 on employees who threatened employers and their representatives with industrial action.

    The Governmental Decree of 16 October 1830 lifted all bans on the freedom of association. This was confirmed by Article 27 of the Constitution, which grants the right to enter into an association or partnership, a right that is not subject to any preventative measures. The Penal Code of 1810 nevertheless retained Articles 414, 414 and 416 because politicians in the 1830s were concerned with political freedom rather than with freedom of association.

    The Law of 31 May 1866 abolished these Articles and allowed workers to associate and set up unions. However, the newly added Article 310 of the Penal Code forbade any form of physical or moral coercion which might injure the freedom of work and industry; picketing remained unlawful, thus making effective union action impossible.

    On 11 June 1919 the Minister of Justice, Emile Vandervelde, introduced a government bill abolishing Article 310 of the Penal Code, but this expired when Parliament was dissolved on 13 January 1920. It was re-introduced after being amended to cover not only the right to organise and set up a union, but also freedom of association in the broad sense of the word, leading to the Law of 24 May 1921 on the protection of freedom of association. A second law passed on the same day abolished Article 310 of the Penal Code.

Page 57 of 94