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7719 results in Intersentia

Page 275 of 386

  • Chapter 2 - Restructuring of Enterprises

  • 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 153-154

  • Summary

    In case of the restructuring of an enterprise there are provisions that deviate from ‘ordinary’ dismissal law.

    Employers who proceed to collective dismissal, closure of the enterprise or who transfer their enterprise, either completely or partially, must – depending on the case – inform the public authorities and employees’ organisations beforehand. Apart from this, in certain cases employees receive specific compensation. In the case of bankruptcy, too, there is a special arrangement for regulating employees’ rights after the take-over of the healthy parts of the bankrupt company. This arrangement was inspired by Chapter 11 of the US Bankruptcy Code. Because of the specificity this matter will not be discussed further. Those interested can find more information on the following governmental website: www. herstructureringen.be/restructuration/fr/homepage/index.html.

  • Chapter 1 - Trade Unions

  • from II - TRADE UNIONS AND EMPLOYERS’ ASSOCIATIONS
  • Patrick Humblet, Marc Rigaux
  • Book:
    Introduction to Belgian Labour Law
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    11 August 2016, pp 181-184

  • Summary

    SECTION 1. THE LEGAL POSITION OF REPRESENTATIVE UNIONS

    FUNCTIONAL LEGAL PERSONALITY

    Unions can acquire legal personality provided their articles of association comply with the Law of 31 March 1889 on professional associations (hereafter referred to as the Professional Associations Act) or the Law of 27 June 1921 on non profit organisations (hereafter referred to as the Non-profit Organisations Act). For various reasons they have not used this possibility to date.

    After the Second World War, the public authorities realised that unions had to be formally involved in the socio-economic decision-making process and granted them certain powers, i.e. functional legal personality. This covers a wide range of union powers. The most important is undoubtedly the competence to conclude contracts and act as agents.

    In the framework of the Law on Collective Labour Agreements of 5 December 1968 (hereafter the Collective Labour Agreements Act), representative unions were awarded, inter alia, the competence to draw up legally binding collective labour agreements.

    REPRESENTATIVE WORKERS’ ORGANISATIONS

    The concept ‘most representative workers’ organisation’ was first used in the framework of the Constitution of the International Labour Organization and adopted in various Western European countries in the period between the two World Wars. It became commonly used in Belgium after 1945, when the legislature proceeded to structure industrial relations in consultation with the social partners.

    In order to facilitate social dialogue, the public authorities decided to negotiate only with representative workers’ organisations. To qualify as representative, they had to meet a number of conditions. Article 3 of the Collective Labour Agreements Act, for instance, provides that multi-industry organisations set up at national level and represented in the National Economic Council and the National Labour Council are representative. Other laws contain similar provisions.

    As a result, only three workers’ organisations are involved in social consultations at all levels, i.e. the Federation of Liberal Trade Unions, the Confederation of Christian Trade Unions, the Belgian General Federation of Labour and the occupational associations affiliated to the latter two.

  • Chapter 3 - A Written Document

  • 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 11-12

  • Summary

    An employment contract is a consensual agreement which can be concluded orally and for which no written proof is required. However, in some cases the law requires that prior to recruitment a document is made up. Sometimes this requirement refers to the whole of the agreement. Written documents are necessary for: employment contracts for a fixed period or for a specified task, part-time employment contracts, replacement contracts, employment contracts for home workers, employment contracts for students, employment contracts for temporary work and temporary agency work, and employment contracts for tele-work. The law also requires certain stipulations of the contract to be laid down in writing: the competition clause and the Delcredere clause for sales representatives. These clauses do not necessarily need to be written down at the time of recruitment.

  • Chapter 3 - Suspension of the Employment Contract

  • from III - 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 61-114

  • Summary

    SECTION 1. GENERAL

    TYPES

    The grounds for suspension can be grouped according to their legal origin or on the basis of whether or not a guaranteed wage is due.

    Origin

    The first type consists of the grounds for suspension regulated by the employment contract legislation.

    The second series has its origin in the application of the principles of general contract law on the employment contract.

    In the context of civil law two kinds of suspension are acknowledged: the suspension of the contract that can be put down to the erroneous conduct of one of the contracting parties, and the suspensions for which an extraneous cause or circumstances beyond one of the parties’ control can be blamed.

    The third type refers to the conventional grounds for suspension. There is nothing to prevent the parties from agreeing that some or other event will suspend the employment contract. For instance, the employer may agree that the employment contract is suspended to allow the employee to travel around the world.

    Finally, there are certain grounds for suspension that cannot be put in any of the previous categories. This is, for instance, the case in the event of a strike and lock-out, which are qualified by jurisprudence as a ground for suspension of the employment contract.

    Guaranteed wages

    It is also possible to subdivide the grounds for suspension of the employment contract depending or whether or not they lead to the payment of guaranteed wages.

    The Employment Contract Act distinguishes between three forms of interruption of employment with guaranteed wages, namely the grounds for suspension with preservation of guaranteed daily, weekly and monthly wages.

    The Employment Contract Act also regulates a number of cases of suspension without linking these to any allowances.

    SETTING

    The establishment of legal grounds for suspension must be seen in the context of the legislator's pursuit of more job and socio-economic security for employees. The legislator does this by prescribing that in a number of cases, even though no work is undertaken, wages must be paid and by restricting the employer's right of dismissal, to a greater or lesser extent, during a certain number of periods of suspension.

  • IV - FUNDS FOR SOCIAL SECURITY

  • Patrick Humblet, Marc Rigaux
  • Book:
    Introduction to Belgian Labour Law
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    11 August 2016, pp 247-248

  • Summary

    Employers and employees can set up a fund for social security at sectoral level. On the basis of a collective labour agreement, agreements are concluded concerning payments to this fund. The money in question can be used for various purposes:

  • – financing, granting and paying social benefits (e.g. trade union bonuses);

  • – financing and organising vocational training for employees and youngsters; Or

  • – financing and ensuring the health and safety of the employees.

    • The funds have legal personality; they are jointly managed by representatives of both the employers and the employees.

    In certain sectors (such as the building sector) the financial obligations of the fund are quite demanding. This is a consequence of, amongst others, the fact that (re)training, for instance, is fully organised via the fund. These costs (in addition to the social security contributions) lead to an increase in the labour costs, thus encouraging moonlighting. Another problem concerns the benefits for union members. Some sectors provide supplements to the unemployment benefits in the event of economic unemployment, although these are limited to members of the representative trade unions. Sooner or later, this practice may very well clash with the prohibition of discrimination.

  • Chapter 1 - Strikes, Lock-outs and Factory Occupation

  • 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 249-254

  • Summary

    SECTION 1. STRIKES

    Article 1 of the Essential Services Act describes a ‘strike’ as a ‘collective and temporary decision of workers to stop working’. This implies that:

  • – employees temporarily cease to fulfil their contractual obligation to work. A partial or alternative resumption does not suffice;

  • – strikes are collective. A one-man strike does not constitute a strike (unless the enterprise has only one employee);

  • – the cessation of work is only temporary. Strikers go back to work when the strike has ended; and

  • – a striker is a person who has ceased his/her contractual obligations. Members on a picket line are therefore not necessarily strikers.

    • Case law and doctrine often refer to the definition given in the Dictionary of Social Legislation: ‘A voluntary and un-coerced decision taken by all or a group of workers to deliberately stop working temporarily as a means of achieving a specific objective.’ As this text never became legally binding, its definition is indicative only.

    Strikes can be subdivided according to their:

  • – objective: professional strikes, solidarity strikes and political strikes;

  • – origin: regular strikes, spontaneous strikes and wildcat strikes; and

  • – the methods used: ‘ordinary’ strikes, work-to-rule strikes, lightning strikes, selective strikes, plant occupations, boycotts, go-slow strikes, etc.

    • In the past, the type of strike used affected the courts’ view of collective action. However, the Court of Cassation ended this situation with its principle ruling of 21 December 1981.

    LEGAL POSITION

    Before the Act of 24 May 1921, it was considered a criminal offence to organise and participate in a strike. Although the sanction under public law was repealed by the 1921 Act, striking remained an offence under civil law.

    Initially, participating in a strike was considered to be a breach of contract, but not serious enough to warrant a unilateral termination of the contract of employment. Strikers were often dismissed for just cause. The answer to the question of whether or not all forms of professional collaboration had become impossible depended on the nature of the work stoppage. Regular strikes (i.e. recognised by the representative unions and respecting the obligation of social peace and the conciliation procedure) were considered legal. Taking part in such actions did not justify dismissal for just cause. Spontaneous strikes (i.e. recognised by the representative unions, but not respecting the social peace obligation and conciliation procedure) were often regarded as unlawful.

  • II - TRADE UNIONS AND EMPLOYERS’ ASSOCIATIONS

  • Patrick Humblet, Marc Rigaux
  • Book:
    Introduction to Belgian Labour Law
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    11 August 2016, pp 181-181

  • Summary

    Employers and unions are organised in professional associations.

    Article 10 of ILO Convention No. 87 defines a professional organisation as any organisation of workers or employers aimed at furthering and defending the interests of workers or employers. However, there is no actual definition in Belgian law. This is the result of two facts:

    Firstly, workers’ organisations have always refused to adopt legal personality. Secondly, the public authorities are committed to the natural balance of power and never intervene directly in industrial relations.

    This does not mean that unions operate in a legal void. Some have actually been specifically integrated into the system. Our study will be confined to these ‘representative’ organisations.

  • Chapter 1 - Rights and Duties

  • from III - 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 43-56

  • Summary

    Employers and employees have certain rights and duties. These may stem from the individual employment contract, work rules, collective labour agreements and the law.

    Therefore it is impossible to discuss all the rights and duties of the parties in this context. We will restrict ourselves to the most important ones, more specifically, those included in the Employment Contract Act.

    SECTION 1. THE EMPLOYER's DUTIES

    GENERAL

    The employer shall:

  • - show respect and regard for his employee;

  • - observe and make the observation of propriety and decency a priority This obligation is not only imposed by Article 6 Employment Contract Act but also by the provisions of chapter Vbis of the law concerning the well-being of employees, which includes a number of provisions with regard to improper behaviour such as sexual harassment;

  • - allow the employee to work in the manner, place and time agreed, in particular when the circumstances require this and except for contrary provisions in the agreement, by providing the necessary assistance, equipment and materials. The employer may not employ the employee contrary to that which has been agreed in the employment contract. Nevertheless, the employer may adapt the working conditions with some flexibility;

  • - see to it with due diligence that the work is done in proper circumstances with regard for the employee's health and safety, and that in the event of an accident, first aid is available. To this end a first-aid kit must be at the personnel's disposal;

  • - pay the wages in the agreed manner, time and place. Actually, the parties’ freedom to regulate the manner in which the wages are fixed and paid is very limited. The Wage Protection Act72 regulates the various aspects of this obligation;

  • - accommodate the employee properly as well as provide him/her with healthy and sufficient food insofar as the employer has undertaken to provide him/ her with board and lodging;

  • - give the employee enough time to observe his/her religious obligations as well as the civil duties ensuing from the law;

  • - pay proper attention to the reception of the new employee, and in particular, of young employees;

  • Chapter 3 - Regulations for Settling Industrial Disputes

  • 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 259-262

  • Summary

    SECTION 1. THE ESSENTIAL SUPPLIES AND SERVICES IN PEACETIME ACT OF 19 AUGUST 1948

    After the Second World War, the Decree Law of 12 April 1945 prohibited strikes to facilitate the rebuilding of Belgium's war-ravaged economy.

    As this law limited a number of civil liberties it soon provoked considerable dissatisfaction amongst workers. It was repealed following union pressure and replaced by the Essential Services Act.

    The law sought to find a formula respecting the general interest whilst safeguarding individual liberties and freedom of association.

    However, it is important to note that the Essential Services Act is not truly a requisitioning law, but a conflict management model for the social partners. Joint committees play a very important role because they essentially decide which needs and services are vital and how they should be assured. The State only intervenes when the parties are unable to agree.

    SECTION 2. SCOPE OF THE ACT

    This act only applies to the private sector, provided the parties fall under the jurisdiction of a joint committee.

    The public sector and all the enterprises not governed by a joint committee therefore do not fall under its scope. In the past, however, the State used this act a number of times (contra legem) to requisition public servants.

    SECTION 3. THE CONCEPT ‘VITAL GOODS AND ESSENTIAL SERVICES’

    Parliamentary documents on the Act of 19 August 1948 defines essential services as follows: ‘private activities leading to the production of vital goods, necessary for the population, or activities forming a vital part of production or distribution, or relating to the distribution of these services meeting the population's fundamental needs’.

    Rather than defining the concept, the legislator chose instead to enumerate the characteristics of vital goods and essential services.

    SECTION 4. LEGISLATIVE MECHANISMS

    DEFINITION OF VITAL GOODS AND ESSENTIAL SERVICES

    The law provides three ways of determining vital goods and essential services.

    Joint committees identify vital goods and essential services

    As regards those enterprises falling under their jurisdiction, joint committees have a duty to identify and define the arrangements, supplies and services that must be maintained in the event of collective and voluntary stoppage of work or collective lay-off of employees (lock-out), in order to meet certain vital needs, to carry out urgent work on machinery or material (plant) and to perform certain tasks as a result of force majeure or an unforeseen necessity.

  • Chapter 1 - General Overview

  • 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 187-188

  • Summary

    In the past, during periods of great social conflict, the public authorities summoned employees’ and employers’ representatives to round table conferences to to jointly seek solutions. Such tripartite concertation was the norm before and immediately after the Second World War. However, its importance gradually decreased as joint consultations gained a more structural basis following the establishment of permanent consultative bodies.

    Although some of these bodies are rooted in the 19th century, the foundation for structured collective bargaining was laid primarily during the German occupation. Employees and employers clandestinely concluded the ‘Draft Agreement on Social Solidarity’. This document contained a blueprint for industrial relations after the War, one of which was the establishment of joint cooperation at national, sectoral and enterprise levels.

    The first step taken in this direction was the Joint Committees Act of 1945, followed in 1946 by the Regent Decrees establishing Health and Safety Committees. In 1947, a national agreement between employees’ and employers’ organisations laid down the status of trade unions. Subsequently, the Law of 20 September 1948 with regard to the organisation of the economy (hereinafter Organisation of the Economy Act) established the National Economic Council and works councils.

    The National Labour Council was set up in 1952.

    Parallel to these joint bodies, high level negotiations were also held between the Belgian Federation of Enterprises and the unions, resulting in multi-industry agreements. Between 1960 and 1975 social dialogue was at its zenith. After 1975, state intervention increased as a result of the changing socio-economic climate, so much so that it effectively became a third party. Concertation evolved from bipartite to tripartite.

    As a result of the regionalization of state structures from 1980 onwards, the governments and regional ministries can also be parties to social consultations. To this end, Flanders’ Social and Economic Council and its Walloon counterpart, the Walloon Economic and Social Council were set up, in addition to the Flemish Economic and Social Consultative Committee and the Brussels Regional and Social Council for the Brussels region.

  • 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.

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