Add a bookmark to get started

31 January 202313 minute read

Be Aware January 2023

A new year, new remuneration thresholds

The 1978 Act on Employment Contracts, in relation to three clauses, stipulates a remuneration threshold, ie the non-compete clause, the arbitrage clause and the training clause. This remuneration threshold is indexed each year. The low remuneration threshold for 2023 is set at EUR39,353 (instead of EUR36,785 for 2022) and the high remuneration threshold is set at EUR78,706 (instead of EUR73,571 for 2022). Both thresholds only increased by around 7%. Inflation in December 2022 stood at 10.35%.

A non-compete clause is not possible if the annual remuneration at the moment the employment contract is terminated is lower than EUR39,353. If the annual remuneration is between EUR39,353 and EUR78,706, a non-compete clause is only possible for the functions where a collective bargaining agreement at the level of the joint committee allows this. But there are few joint committees with a collective bargaining agreement on this topic (notably the joint committee of the hotel sector). When the annual remuneration at least equals EUR78,706 per year, a non-compete clause is possible, unless a collective bargaining agreement would stipulate the contrary.

Although this is not expressly stated in the 1978 Act, it’s generally held that the notion of remuneration should for the purpose of this threshold be construed in the same was as it is for the purpose of determining the indemnity in lieu of notice. So benefits in kind should be included.

In a judgement of 17 January 2012, the Employment Appeal Tribunal of Brussels held that if the employee works part-time, the remuneration threshold should be assessed on the basis of the hypothetical full-time remuneration.

For sales representatives, the non-compete clause is possible if the annual remuneration equals at least EUR39,353 gross.

The remuneration threshold is assessed on the basis of the remuneration applicable at the moment the employment contract is terminated. It can be a good idea to include a non-compete clause in the employment contract of a new recruit who does not reach the remuneration threshold. The new recruit might get a pay rise or a promotion and therefore reach the remuneration threshold for a non-compete clause.

If the remuneration threshold is not met, the employer should make sure to waive the application of the non-compete clause within 15 days following the termination. Under the current case law, only the ex-worker can invoke that the remuneration threshold was not met and that the non-compete clause is therefore void. The ex-employer cannot invoke the remuneration threshold to avoid the payment of the non-compete indemnity.

A training clause is in principle only possible if the annual remuneration equals at least EUR39,353. This remuneration threshold does nevertheless not apply if the training is for a “bottleneck profession” as defined by the regional government.

An arbitrage clause (whereby the parties agree in advance to settle a dispute through arbitrage, rather than Employment Tribunals) is only possible if the annual remuneration equals at least EUR78,706 and the employee is in charge of the daily management of the company or an important part of it. The 1978 Act does not specify when this remuneration threshold should be assessed. And, as arbitrage clauses are very uncommon in Belgian employment law, there’s no reported case law on this point.

The 1978 Act on Employment Contracts also stipulates a remuneration threshold that is not indexed. For white-collar workers who were already employed on 31 December 2013, the part of the notice period in relation to the service years before 2014 is calculated differently depending on whether the remuneration exceeds EUR32,254. If the threshold is not exceeded, the notice period is three months per five years’ continuous employment. If the threshold is exceeded, the notice period is one month per year’s service, but with a minimum of three months. This remuneration threshold relates to the remuneration on 31 December 2013, so there’s no need to index this remuneration threshold. 

It’s Saturday evening – fortunately the weekend starts tomorrow

Belgian employment law can be very complex, even when it comes to topics that seem to be simple. The recent evolution in relation to the definition of a “working day” is a good illustration of this.

Traditionally, a working day in Belgian employment law is defined as any day that’s not a bank holiday or a Sunday. So Saturday is considered a working day. It’s irrelevant whether staff normally work on Saturday in the company in question.

This position is based upon a reply given by the Minister of Work to a question in Parliament back in 1977. There was no Act with an express definition of the notion of “working day,” but only a number of legal provisions indirectly suggesting a definition. The Labour Act of 16 March 1971 includes a chapter with restrictions concerning working on Sundays, but does not stipulate any particular rule concerning working on Saturdays. The Royal Decree of 30 March 1967 determining how to implement the legislation on annual holiday leave first calculates the number of days’ holiday leave in a working week of six days, and only in a second stage converts this into a working week of five days.

The new Civil Code, which entered into force on 1 January 2023, in article 1.7, includes a definition of working day: “working days are all days besides bank holidays, Sundays and Saturdays.” This definition is included in the first chapter of the Civil Code, and was intended to apply to all contractual relationships, including employment contracts.

On 16 November 2022, the Belgian National Labour Council published advice where it took note of this definition in the new Civil Code, but asked the Minister of Employment to introduce new legislation to keep the current definition of working day. According to the National Labour Council, the new definition of working in the Civil Code would result in uncertainty, although the change in the new Civil Code was limited to the status of Saturday.

In the light of this advice, a draft Act was submitted to parliament to amend the new definition in article 1.7 of the Civil Code. The Act stipulates that the definition in article 1.7 does not apply to the legislation regulating employment relationships, social security and social aid. The Act does not add how a working day should be construed in those matters, but it was clearly the intention to use the traditional definition that working days are all days except bank holidays and Sundays.

This draft Act was promulgated on Monday 26 22 December 2022 and entered into force on 1 January 2023.

Despite the new Civil Code, nothing changes in the field of employment law. So the requirement that dismissal for serious misconduct must take place within three working days following the day on which the employer discovered the facts with sufficient certainty is unchanged. And the requirement that the reasons for dismissal for serious misconduct must be communicated by bailiff or by registered mail within three working days following the dismissal also stays the same.

Disciplinary sanctions must also be imposed on the first working day following the day on which the employer discovered the facts. In both cases, Saturday should be counted as a working day. If an employer discovers misconduct with sufficient certainty on a Friday afternoon, a disciplinary sanction will only be valid if it’s imposed at the latest on Saturday, even if the company is closed on Saturday and nobody normally works on that day.

Similarly, if a dismissal for serious misconduct takes place on Wednesday, the last day for communicating the reasons for this dismissal by bailiff or by registered mail is Saturday (assuming there are no bank holidays in the week concerned.