Be Aware May 2023

New rules change how employers can use consecutive fixed-term contracts and replacement contracts in Belgium

On 8 May 2023, a new article of the 1978 Act on Employment Contracts entered into force. The new article introduces rules on combining consecutive fixed-term contracts and replacement contracts.

 

Previous rules on fixed-term contracts

Since 1998, the 1978 Act on Employment Contracts has stipulated that an employee can sign a maximum of four consecutive fixed-term contracts. Each fixed-term contract should last at least three months and the sum of all contracts can be two years at most.

If the social inspection agrees in advance, employees can sign up to six consecutive fixed-term contracts. That is if each contract lasts at least six months and the total duration of the consecutive fixed-term contracts is no more than three years.

Similarly, since 1985, the 1978 Act on Employment Contracts has stipulated that consecutive replacement contracts can last at most two years. If this threshold is exceeded, the employment contract is deemed to be an employment contract of undefined duration.

But there was a loophole in the legislation. There were restrictions on using consecutive fixed-term contracts and on using replacement contracts. But there were no rules on combining them.

So, if parties signed four consecutive fixed-term contracts, with a minimum of three months per contract and a maximum of two years for the total duration of all contracts, they could then sign a replacement contract. After that they could restart a cycle of four consecutive fixed-term contracts. The first fixed-term contract of the second cycle came after a replacement contract, so it wasn’t a consecutive fixed-term contract.

In its judgement of 17 June 2021, the Constitutional Court held that having no rules on combining consecutive fixed-term contracts and replacement contracts was contrary to the principle of equality stipulated in the Constitution.

The legislator’s aim was to ensure that, after a certain period, an employee was given an employment contract of undefined duration. So there was no objective justification this aim being circumvented by signing a combination of fixed-term contracts and replacement contracts.

 

What’s changed?

The new rule provides that a combination of consecutive fixed-term contracts and replacement contract can, in principle, last two years at most.

But there’s an exception if the parties first sign consecutive fixed-term contracts, followed by a replacement contract. The total duration of all contracts cannot exceed three years.

So, if an employer planned four consecutive fixed-term contracts with a total duration of maximum two years, but the employee is to be replaced when the fourth fixed-term contract ends, the employer can sign a replacement contract with the employee, if the total duration of all contracts is not more than three years.

Both fixed-term contracts and a replacement contracts should be agreed in writing before they enter into force.

 

New rules align notice periods for white-collar and blue-collar employees in Belgium

A new Act of 20 March 2023 changes the notice period for employees who are resigning. The change means white-collar and blue-collar employees will now have the same notice period.

Discussions about aligning notice periods applicable to blue-collar and white-collar employees generally concerned the notice period applicable in case of a dismissal. But the Act of 26 December 2013 also aligned the notice periods applicable when an employee resigned for the period as of 1 January 2014.

For employees who started working as of 1 January 2014, these notice periods apply when they resign:

Period of continuous employment	Notice period (weeks)
Less than 3 months	1
3 months but less than 6 months	2
6 months but less than 12 months	3
12 months but less than 18 months	4
18 months but less than 24 months	5
2 years but less than 4 years	6
4 years but less than 5 years	7
5 years but less than 6 years	9
6 years but less than 7 years	10
7 years but less than 8 years	12
More than 8 years	13

 

Specific rules apply when the employee gives counternotice (ie an employee resigning pending a notice period issued by the employer).

For employees who were already employed on 31 December 2013, the same three-step approach applied as for a dismissal:

• The first step is the notice period for the years of employment as of 2014, which is determined based on the table above.
• The second part concerns the notice period for the years of employment before 2014. It was in principle to be determined based on the legislation as applicable on 31 December 2013. For white-collar workers whose annual pay on 31 December 2012 was more than EUR32,254 gross, the notice period when resigning was 1.5 month for each period of 5 years’ continuous employment. But there was a maximum of 4.5 months if the annual pay on 31 December 2013 was between EUR32,254 and EUR64,508 gross, and 6 months if the annual remuneration was more than EUR64,508.
• The actual notice period is the sum of both steps.

For blue-collar workers, the Act of 26 December 2013 said the notice period when an employee resigned was a maximum of 13 weeks. For white-collar workers, who had to respect longer notice periods under the legislation applicable on 31 December 2013, it wasn’t clear if the 13-week cap also applied to them.

Employees who started work in 2014 or earlier had already reached the maximum of 13 weeks on the basis of their continuous employment as of 2015. So the legislation could be simplified by abolishing the three-step approach.

The Act of 20 March 2023 keeps only the periods shown in the table above. So the notice period when an employee resigns is 13 weeks when they’ve worked for eight continuous years. This applies to both blue-collar and white-collar workers.

The Act of 20 March 2023 will enter into force on 28 October 2023. Any notice period calculated under the existing legislation that would be pending on 28 October 2023 won’t be affected by the new Act.