Our blog of 17 October 2022 explained that Belgium has finally transposed the EU Directive on transparent and predictable working conditions into national law.
That first blog (in this series of three) elaborated on the right of employees to request a form of employment that is more predictable and secure.
This second blog focuses on the principle of transparency towards employees and, more specifically, on the employers’ obligation to inform their employees individually in one or more documents about the main aspects of their employment relationship. In addition, the employer will also be required to initiate the procedure to amend the work rules as new provisions will have to be added. Therefore, in times of administrative simplification, these new obligations constitute additional formalities for employers.
Moreover, the new law provides for criminal penalties and protection against adverse treatment or dismissal for any employees who file a complaint due to an employer’s non-compliance with the new law.
1. individual information to be provided to employees about the main aspects of the employment relationship
What information must be provided?
The employer must inform the employee about the key aspects of the employment relationship.
Most of these aspects are usually already included in employers’ template employment contracts, such as: the identity of the parties, the place of work, the function, the start date of the employment relationship, the end date or expected duration if the employment contract is for a definite term, the salary and fringe benefits including the payment method and frequency (or referring to the relevant legal provisions), information about the fixed or variable work schedule (or referring to the work rules for certain aspects), etc.
However, other elements may be less ‘standard’ and will have to be added in the employment contract or in any other written document.
For example, the employer is also obliged to inform the employee about the following:
- If the work is not performed at a fixed place or mainly at a fixed place: a statement that the employee performs his/her work at different places or is free to determine his/her place of work, as well as information on any arrangements for travel between the different places of work or referring to the work rules in this regard, as well as the place of the employer’s registered office.
- Besides the function, also the function title, the rank, capacity or category of the work performed to determine the employee’s salary and employment conditions.
- The arrangements relating to the performance of overtime hours and additional hours (for part-time workers), the salary for such hours and the other rights associated with the performance of these overtime or additional hours. For employees with a fixed working time schedule, there is the option provided to refer to the work rules for this purpose; however, this option is not provided for employees working according to a variable working time schedule.
- For employees who will work in another country for more than 4 consecutive weeks or who are posted to another EU member state, the employer must complete the general information with additional information (such as: the country in which the work abroad is to be carried out and its expected duration, the currency in which the remuneration is to be paid, the benefits in cash or in kind linked to the work assignment, information about the employee’s return). For posted workers, even more additional information obligations apply.
How must this information be provided to the employee?
The employer must provide this information in writing or electronically and must keep proof of the transmission or the employee’s receipt of this information.
This information can be included in the written or electronic employment contract, but this is not compulsory; it can also be included in one or more other written documents (for example, as an information note to the employee).
When must this information be provided to the employee?
This information must be provided to the employee at the latest on his/her first day of work.
However, this information obligation only applies to new employment relationships, i.e. to contracts entered into as from the new law entering into force, which will be 10 days after its publication in the Belgian Official Gazette.[1] For existing employment relationships, the employer will only have to provide this information following the employee’s express request.
What if the provided information changes?
Any change in the information stated in the written document(s) must be provided by the employer to the employee in the form of an amendment to the relevant document and this must be no later than the day on which the change takes effect.
However, if the amendment is the mere consequence of a change in legal, regulatory or collective bargaining agreement provisions, then the employer does not need to communicate that type of amendment.
2. collective information to be provided in the work rules
The following information of a collective nature must be included in the work rules:
- the procedure (including formal conditions and notice periods) in case of a termination of the employment relationship as well as the time period during which an appeal can be lodged against the dismissal or the reference to the legal or regulatory provisions governing these points;
- the reference to the joint committee for sectoral CBAs;
- the right to training offered by the employer or the reference to legal or regulatory provisions or CBAs that govern this right;
- the social security body that collects the social contributions related to the employment relationship.
To include the information under the last two bullets in the work rules, the strict procedure for amending the work rules must be followed (for the information under the first two bullets, that strict procedure is not necessary).
This obligation will also come into force on the 10th day following the Act’s publication in the Belgian Official Gazette.
3. penalties
The Act also includes penalties if the employer fails to provide the required individual and collective information to its employees:
➣ “Individual” information: employers who fail to provide workers with individual information regarding the essential aspects of their employment relationship can be punished with a level 3 penalty (a criminal fine between EUR 800 to EUR 8,000 or an administrative fine between EUR 400 to EUR 4,000), which will be multiplied by the number of employees.
If the employer communicates the information set out above to the employee in an incomplete or inaccurate manner or if the employer does not respect the deadline for communicating the information to the employee, then the employer can be punished with a level 2 penalty (a criminal fine between EUR 400 to EUR 4,000 or an administrative fine between EUR 200 to EUR 2,000), which will be multiplied by the number of employees.
➣ “Collective” information: employers who do not follow the procedure to amend their work rules to include the information above that has a collective nature can be punished with a level 2 penalty, which will be multiplied by the number of employees.
The Act also provides for a level 2 penalty multiplied by the number of employees if the employer does not provide the employees with a copy of the work rules.
In addition, it is important to note that the employee or his/her representative(s) in the company (i.e. the person(s) who have assisted and supported the employee in filing the complaint) will be protected against any unfavourable treatment or dismissal if the employee files a complaint due to the employer’s violation of the EU directive.
The employee can file such a complaint with the employer, the social inspectorate or the court.
If the employer adopts an unfavourable measure against the employee, or dismisses the employee or prepares to dismiss the employee following the filing of a complaint, unless for reasons not related to the complaint, then the employer will pay an indemnity equal to a lump sum of 6 months’ gross remuneration, or an amount equal to the damage that the employee has suffered.
Conclusion
The new Act of 29 September 2022 has been voted upon in Parliament, but – to date – has not yet been published in the Belgian State Gazette. As from this new Act entering into force, which will be 10 days after its publication in the Belgian State Gazette, all employers should ensure that they inform their employees at the latest on their first working day, whether in writing or electronically, and either in the employment contract or in (a) separate document(s), about the essential aspects of the employment relationship and amend their work rules to incorporate any new compulsory provisions.
[1] To date (19/10/2022), the new law on transparent and predictable employment conditions has not yet been published in the Belgian Official Gazette.
