Belgium has fairly extensive protective labour laws, as enacted by Parliament. Moreover, collective bargaining between the so-called ‘social partners’, i.e. the employers’ organisations and the trade unions, plays a very important role in the shaping of the rules of labour law. Case law, in particular that of the Supreme Court and the Constitutional Court, can have considerable influence on the application of labour and employment law in practice. In Belgium, labour courts deal with disputes in relation to employment relationships. Enforcement of labour law provisions may also be initiated by other authorities, including the labour inspectorate or tax and social security authorities. The Social Inspectorate also provides information to employers and workers, gives advice, arbitrates and verifies whether labour law and the various collective labour agreements are complied with.
Employment law in Belgium is mainly based upon the following sources:
- the Constitution;
- EU Regulations and Directives;
- different national Acts, in particular the Act of 3 July 1978 on employment contracts;
- Decrees of the Regions and Communities;
- Royal and Ministerial (executive) decrees;
- collective bargaining agreements, i.e. agreements on national, sectorial or company level between one or more trade unions, on the one hand, and one or more employers’ organisations or one or more employers, on the other hand, on a wide range of collective labour issues;
- employment contracts;
- work rules (‘arbeidsreglement / règlement de travail’), i.e. a mandatory document including a set of rules that are proper to the employer and the employees of his/her undertaking;
In principle, case law precedents have no legally binding force. Yet, in practice, decisions of the highest courts, i.e. the Supreme Court (‘Hof van Cassatie / Cour de Cassation’) and the Constitutional Court, have strong persuasive authority, especially when confirmed repeatedly. Also, judgements of international courts like the Court of Justice of the European Union and the European Court of Human Rights, can have an important impact.
The absence of a real government with a majority in the parliament (since the end of 2018) has resulted in the fact that less major or important acts in the field of employment law were introduced. Many developments were consequences of earlier legislation or decisions which were taken (or voted) before the end of 2018. An important exception is the temporary rules regarding the COVID-19 pandemic in 2020.
In order to cope with the virus, a minority government was given special legislative powers to enact temporary legislation, this included the flexibilisation of temporary unemployment schemes, specific health and safety obligations, mandatory teleworking, the introduction of specified parental leave, the postponement of the social elections, etc. Since at the time of publication, most of these COVID-19 measures were only temporary (and the majority are no longer applicable), thus we will focus on permanent developments.
In October 2020 a new (majority) government was formed and so it is likely that a number of consequential new measures will be introduced as from 2021. The government agreement mentions, amongst others:
- the importance of the involvement of the social partners;
- evaluation and simplification of the reintegration procedure in case of long-term incapacity to work;
- evaluation of the different leave systems (especially for parents);
- flexibilisation of working time;
- a new legal framework for telework;
- the importance of the fight against discrimination (reform of the system of mystery shopping);
- equal pay initiatives.
In March 2018, the legislator installed a system whereby an employee who has a company car as part of his salary package (which he may also use privately), can exchange that car for a monetary mobility allowance (also called the “cash for cars system”), which corresponds to the financial advantage of the car and which is taxed in the same favourable way.
However, in early 2020, the Constitutional Court annulled this legislation. In order to give the (relatively low number of) employers and employees who have made use of the mobility allowance time to find another solution, the Court maintains the effects of the annulled law, pending, where appropriate, the entry into force of the new legal provisions and/or until 31 December 2020, at the latest. That said, employers and employees can still make use of the ‘mobility budget’ system that was introduced in 2019 and which has the support of the social partners. When an employer decides to introduce the mobility budget in his company, employees can exchange their company car or their right to a company car, for a mobility budget. Employees are free to spend this budget in 3 pillars, taking into account the spending possibilities offered by the employer. The first pillar is an eco-friendly car; the second pillar contains durable means of transportations (e.g. bikes or public transport) or housing costs, e.g. to adapt the house of the employee to make it suitable for telework, or costs in order to live closer to the workplace (e.g. renting an apartment). The third pillar is a monetary allowance, but the allowance of this residuary pillar is taxed less favourably than the options under the first two pillars.
Further, an Act of 9 May 2018, has implemented the EU ‘Single Permit’ Directive 2009/52, which obliges the Member States to use a single application procedure to establish the issuance of a single permit to non-EU nationals for residence and work. As the procedure of the single permit, which became applicable in 2019, was rather slow, the government introduced some minor changes in 2020 to speed up the process. Meanwhile, the new government wants to further simplify the procedure.
Next, an act of 4 February 2020 introduced several new protected criteria in the gender discrimination act of 2007. This legislative amendment equates a direct distinction based on fatherhood, breastfeeding, adoption, medically assisted reproduction or gender characteristics with a direct distinction on the basis of gender.
Further, the Act of 18 July 2018, created a tax threshold of 6340 euro per year, under which employees can have an additional income from side jobs in the gig economy (through digital platforms), from work for non-commercial associations and from citizen to citizen work (small non-professional jobs for other citizens). For this additional income, there are no income taxes or social security contributions required. However, the Constitutional Court invalidated this system in the beginning of 2020, as it deemed it discriminatory compared to normal employees who cannot enjoy the favourable fiscal treatment. The Court has upheld the consequences of the system until the end of 2020. The new government wants to introduce a new system before the end of 2020.
Finally, the Act of 12 June 2020, has implemented the revision of the Posting of Workers Directive, which introduces some new information obligations for users of posted temporary agency workers and seconded employees.