Minimum Working Conditions
In Belgium, the terms and conditions of employment are not only embedded in laws, but also in collective bargaining agreements (CBA’s). CBA’s are entered into either on an industry level between the unions and employer organisations or on a company level between the unions and an individual employer.
In principle, minimum wages are fixed per sector of industry in collective bargaining agreements. Yet, these minimum wages may not be lower than the guaranteed average minimum monthly wage, fixed by national CBA, which amounts to 1.688,03 EUR (as of the age of 20 with 1-year seniority; figure in 2020). In addition to their monthly gross salary, employees are entitled to double holiday pay. Moreover, in most sectors of industry, the payment of an end-of-year premium is mandatory.
Maximum Working Week
The maximum average working time is 38 hours per week and 8 hours per day; however the maximum working time per week may be lower in some sectors of industry on the basis of a collective bargaining agreement. There are several statutory exceptions to this rule. In case of shift work, it is for instance possible to work up to 11 hours per day and in case of continuous work even up to 12 hours. Under certain conditions, flexible working time schedules with a weekly working time exceeding 38 hours may be introduced, provided that the quarterly or yearly average remains at 38 hours per week. Daily minimum working time is three hours, but statutory exceptions exist. Working at night, on Sundays and during public holidays is only allowed under strict legal conditions.
Overtime work is normally prohibited, although there are several exceptions to this rule. Where overtime is authorised, overtime pay is at least 1.5 times the employee’s regular rate of pay, and twice his/her regular rate if the overtime is performed on a Sunday or a public holiday. Employees also benefit from paid rest periods in case of overtime. Rules relating to working hours and overtime pay do not apply to, amongst others, sales representatives, homeworkers and employees in a managerial role or a position of trust within the company.
Employer’s Obligation to Provide a Healthy and Safe Workplace
The basic regulation on health and safety in Belgium is the Act of 4 August 1996 on the well-being of employees during the performance of their work (‘Well-being Act’). The Well-being legislation defines goals, but not the means to achieve these goals. This grants flexibility to the employer. The legislation on health and safety also provides for the involvement of different key actors.
Every employer is obliged to establish an “Internal Service for Prevention and Protection at Work” (the ‘Internal Service’). This body assists the employer, the members of the hierarchical line and the employees with implementing the legal and regulatory provisions regarding the well-being of the employees and all prevention measures and activities. For this purpose, every employer has at least one ‘prevention advisor’, competent for safety at work (the ‘Safety Prevention Advisor’), who is an employee of the undertaking and connected to an Internal Service. In companies employing less than twenty employees, it is the employer that may exercise the function of Safety Prevention Advisor.
The higher the risk of the company (based on the number of employees and the nature of the activities), the more tasks will be executed by the Internal Service; the lower the risk of the company, the less tasks will weigh upon the Internal Service and the more responsibilities can be outsourced to a so-called External Service for Prevention and Protection at Work (the ‘External Service’), with whom the employer collaborates. External Services must be duly authorised by the authorities.
Other specialised prevention advisors intervene in matters related to psychosocial risks at work (the ’Prevention Advisor-Psychosocial Risks’) or occupational medicine (the ‘Prevention Advisor-Occupational Physician’). These Prevention Advisors can be internal or external depending on the size of the company. An external Prevention Advisor is an employee of an External Service.
The employer determines the means and the way to carry out the well-being policy as well as the competences and responsibilities of the persons in charge of applying the well-being policy. Furthermore, the employer is required to draw up a number of mandatory documents pertaining to health and safety rules, the most important of which are:
- Global Prevention Plan. In this 5-year plan the results of the company’s risk analysis and the prevention activities to be developed and adopted with regard to safety and health need to be programmed, taking into account the size of the company and the nature of the risks attached to the activities of the company.
- Yearly Action Plan. This plan works out the Global Prevention Plan on a yearly basis.
- Yearly report on the activities of the Internal Service.
Under Belgian law, complaint procedures mostly refer to the concept of ‘psychosocial risk’, which covers any potential psychological damage, potentially accompanied by physical damage, linked to work in its broadest sense (for example, organisation of work, working conditions, interpersonal relationships), on which the employer has influence, and which objectively involves a danger. Violence, moral or sexual harassment, stress and an excessive workload are types of psychosocial risks.
Management of psychosocial risks revolves around three key phases: prevention, internal procedure and external remedies. Risk analyses constitute the keystones of the prevention system. Two types of analysis exist: (i) a general analysis, as an integral part of the overall management of risks that the employer is obliged to implement, and (ii) a specific analysis, relating to an individual work situation that poses a danger.
The employer is only obliged to carry out a specific risk analysis when he is asked to do so by a member of the hierarchical line or when at least one third of the representatives of the employees in the Committee for Prevention and Protection at Work (CPPW) require the employer to do so.
- an employee who is deemed to be a victim of a psychosocial risk may address his/her employer, a member of the hierarchical line, a member of the CPPW or a Trade Union Delegate directly.
- he/she may also resort to the internal procedure, consisting of two phases: (1) A compulsory preliminary phase prior to any request, during which the Confidential Counselor (‘vertrouwenspersoon – personne de confiance’) or the Prevention Advisor listens to the employee and advises him/her on the available procedures; and (2) Upon the employee’s choice:
- an informal request for psychosocial intervention, consisting of interviews, conciliations and/or intervention from an outside party within the undertaking; or
- a formal request for psychosocial intervention, with a special feature in case of acts of violence or moral or sexual harassment.
- besides the individual risk, the application for a formal intervention may also address a collective risk. This means that the psychosocial risk affects several employees and has an impact on the work organisation.
An employee who is the victim of violence, harassment or sexual harassment at work may claim compensation for the material and moral damage suffered, which, at the choice of the victim, consists of the actual damage suffered and to be proved by the victim, or a lump sum corresponding to the gross salary for three months. The flat-rate compensation is increased to six months’ gross salary in the event of discrimination, abuse of authority or serious offences.