An EU Directive was published in 2019 that obliges the Member States to guarantee, on the one hand, an improvement in employment conditions by enforcing more transparent and predictable employment conditions, and, on the other hand, increasing the flexibility in the labour market. Belgium has finally transposed this EU Directive with not one but two legal instruments: namely, an Act of 29 September 2022 and a national Collective Bargaining Agreement°161 of 27 September 2022.
This blog series (consisting of 3 parts) focuses on the key points of each of the three main areas brought by the Directive’s implementation in Belgium. In this first blog post, we discuss the right of employees to request a form of employment that is more predictable and secure, which has been laid down in the very recent CBA n°161 of 27 September 2022 and entered into force on 1 October 2022.
This new employee right is explained using the following 10 quick-but-key questions and answers.
1. can all employees invoke this right to request a form of employment that is ‘more predictable and secure’?
No. Only an employee who fulfills the following conditions has the right to request a form of employment that is more predictable and secure:
- the employee is an employee with an employment contract or is an interim worker; and
- has at least 6 months’ seniority (i.e. length of service) with the (same) employer or user; and
- performs more than 3 hours of work per week on average within a reference period of 4 consecutive weeks.
Moreover, for an employee to be eligible for a form of employment that is more predictable and secure, the following conditions must be met:
- a type of work with more predictable and secure working conditions is available in the company;
- the employee must have the necessary qualifications and competences for this type of employment;
- the employee must accept the suggested working time arrangement and salary conditions.
These last three conditions can be modified by a sector-level or company-level CBA, by a company agreement with the trade union delegation or the employees, or by mutual agreement between the employer and the employee.
2. is there a limited list of the types of ‘more predictable and secure employment’ that can be requested by the employee?
No. However, the CBA provides in its commentary that, for example, the following employment forms could be considered as being more predictable and secure and can be requested by the employee:
- For employees with a fixed-term employment contract: an indefinite-term employment contract;
- For part-time employees: a full-time employment contract or an employment contract with a higher weekly working time;
- For employees with variable working schedules: fixed working schedules;
- For interim workers with daily contracts: weekly or monthly interim contracts.
However, this list is not exhaustive, and the employee could propose a different form of employment that he/she considers predictable and secure and that he/she considers to be more appropriate.
3. Is the employee free to choose how he/she will request this form of employment that is more predictable and secure?
No. The employee must provide the employer with a written request. Such a written request must:
- include an explicit reference to CBA n°161; and
- state the exact type of more predictable and secure employment preferred by the employee; and
- state the starting date preference; and
must be filed at least 3 months prior to the date that he/she would like this type of employment to start. However, this term can be deviated from by sectoral or company-CBA, company-level or individual agreement.
The employee must send the written request by registered mail or electronically with a proof of receipt from the employer or he/she should hand it over personally to the employer asking the employer to sign a double copy as a proof of receipt.
4. is there a deadline for the employer to reply to the employee’s request?
Yes. The employer should answer the employee’s request within the following time period:
- within 1 month from the date of the employee’s request for an employer with more than 20 employees; or
- within 2 months from the date of the employee’s request for an employer with less than 20 employees.
5. is the employer obliged to agree to this request? if not, then are there any conditions for a refusal?
No. The employer can refuse the employee’s request, after taking into account the company’s needs as well as the employee’s needs; but the employer’s refusal must be justified in writing (e.g. in a letter or by email). For example, an employer’s refusal could be based on one of the following reasons:
- the requested type of employment is not available within the company;
- the employee does not have the necessary qualifications or competences;
- the company’s operational capacity does not allow for such a form of employment.
As an alternative, the employer could make a counterproposal to the employee’s request or postpone the more predictable and secure form of employment that has been requested.
6. is the employee in any way protected against negative actions by the employer after filing his/her request?
Yes. The employee is protected against:
- Negative action by the employer (such as a demotion, a change of function, a salary reduction, a negative evaluation);
- Dismissal by the employer (including preparatory actions for such dismissal).
The protection above applies from the date of the employee’s request until 2 months after the employer’s refusal or the new form of employment enters into force.
Nonetheless, if the employer would take any negative action towards the employee, then the employer could be held liable to pay damages equal to 2 to 3 months’ salary. If the employer would dismiss the employee, or take preparatory action for such a dismissal, then the employer could be held liable to pay damages equal to 4 to 6 months’ salary. Of course, this will only be the case if the employee invokes facts from which it may be presumed that these negative actions or (the preparation of) the dismissal were based on his/her request for a form of employment that would have been more predictable and secure, without the employer being able to prove otherwise.
If the employee is dismissed or treated negatively for other reasons, then the ‘penalties’ above will not apply.
7. is the employer allowed to postpone the taking-up of the more predictable and secure form of employment requested by the employee?
Yes. The employer can postpone the requested ‘more predictable and secure form’ of employment, provided that there are reasons linked to the good operation of the company’s business that justify such a postponement. The employer should justify such a decision for postponing the request by specifying in writing the exact issues linked to an immediate acceptance.
However, this postponement cannot result in the employee’s taking-up of the more predictable and secure form of employment becoming impossible in practice.
8. must the employer accept the request ‘as is’, or can the employer make a counterproposal?
Instead of accepting or refusing the request ‘as is’, the employer can decide to make a counterproposal to the employee, which may contain an adjusted form of more predictable and secure employment. For example, if an employee with part-time employment (of 50%) would ask for a full-time employment (i.e. 100%), then the employer could suggest a part-time employment equal to 80% of a full-time employment instead, because no full-time position is available within the company at that moment.
9. if the employer accepts the employee’s request, is the employer then free to unilaterally decide on the modalities of this new form of more predictable and secure employment?
No. After the employer has accepted the employee’s request, they both should work out an agreement regarding the modalities of the new form of more predictable and secure employment. In this regard, the parties should, among other things, discuss the working time arrangement as well as the salary conditions.
10. can the employee file a new request for a more predictable and secure type of employment, after a refusal by the employer?
Yes, but the employee can only file a request once in every 12-month period. Only if the employer would not have answered the last request within the agreed term (i.e. within 1 or 2 months, see Question 4), then the employee could repeat his/her request without having to respect this 12-month waiting period.
Conclusion
The EU Directive on transparent and predictable working conditions has finally been transposed into Belgian law by the Act of 29 September 2022 and the CBA n° 161 of 27 September 2022. The CBA entered into force on 1 October 2022. Since that date, employees can ask their employers for a form of more predictable and secure employment.
