FREQUENTLY ASKED QUESTIONS
- A labour contract is another word for labour agreement between employer and employee. A labour agreement may be entered into verbally as well as in writing, but it is wise to have a written agreement.
In a labour agreement, one should always find a.o.:
- Name and place of residence of the employer and the employee
- Place where the work is performed (station)
- Function name, function requirements and the salary
- Date of employment;
- Duration of the agreement (definite or indefinite period of time)
- Vacation days
- Term of notice
- Number of working hours per week or per month (the hours of work)
- CLA and pension scheme in effect, if any
- Trial period, if any
- According to the law, minors are not allowed to enter into agreements. Minors are those persons who have not yet reached the age of eighteen and are not married or were never married or have not been declared of age. The minor may enter into a labour agreement with the authorization of his legal representative. Furthermore, the rule is that it is prohibited to allow persons under the age of fifteen (children) to work.
- In the event of non-active duty the employer, in principle shall always have to continue to pay the salary, because contrary to a suspension, placing en employee on non-active duty is not meant as a disciplinary measure. The employer may only proceed with suspension without paying the salary, if that authority is given him in the written agreement, in a by-law or in the C.L.A. A by-law only binds the employee if certain conditions are met.
- If this right has not been excluded, the employee shall retain his claim to salary for a short period, if because of very special circumstances, which were created through no fault of his or to fill a legal obligation, he cannot work. In a written labour agreement, by-law or C.L.A., one may include the special cases in which and the period during which the employer is obliged to continue to pay the salary.
- On the day of passing as well as that of the funeral of a family member in the direct line indeterminate or up to and including the second degree of the collaterals, the employee shall be entitled to special leave. By family member in the direct line is meant: the parents, grandparents, great-grandparents, great- great- grandparents, children, grandchildren and great-grand children. Family members up to and including the second degree of the collaterals include: brother, sister, brother-in-law, sister-in-law. No special leave will be granted to the family members in the third degree of the collaterals and the fourth degree of the collaterals, namely: uncle, aunt, brother’s /sister’s child, nephew and niece.
- There are 2 possibilities:
- After a series of temporary labour agreements, in which between interruptions, there is each time a period of less than 3 months, the fourth contract shall automatically become employment for an indefinite period of time (“permanent service”).
- If fewer than 4 terms of employment for a definite period of time have succeeded each other with interruptions of not more than 3 months and which combined have exceeded a period of 36 months ( including the interruptions), there is a question of permanent employment.
- A contract for 3 years or more may be extended one time only for a maximum of 3 months, without this automatically being converted to a permanent employment.
- A labour agreement for a definite period of time is also called a contract. The contract mentions the duration of the contract. When that term has passed, the labour agreement terminates automatically, one does not have to give notice. A labour agreement for an indefinite period of time is also called permanent employment. In order to terminate a labour agreement for an indefinite period of time, notice must be give by one of the parties. The employer, in practically all cases, shall require permission to dismiss from the Director of the Department of Labour Affairs.
- Yes, but this must have been agreed upon by both parties in writing ( preferably in the labour agreement).
- A trial period may only be agreed upon in writing. Parties may agree that at the most the first two months shall be in effect as trial period. A trial period of more than 2 months is invalid. During the trial period, both parties may terminate the agreement with immediate effect, without giving reasons.
- In two cases:
- After a series of temporary labour agreements, in which per interruption, each time there is less than 3 months in between, the fourth contract shall automatically become an employment for an indefinite period of time (“permanent service”).
- The same is true, if fewer than 4 terms of employment for a definite period of time have succeeded each other with interruptions of not more than 3 months and these together exceed a period of 36 months ( including the interruptions).
- A salary claim procedure is a demand from the employee to the employer to pay out salary (in arrears). A salary claim procedure may be instituted, for example if the employer pays below the minimum hourly wage. The following documents are important in a salary claim procedure:
Labour agreement, if necessary the CLA, any other agreements made, in any event the last two salary slips and any correspondence which has already been conducted on this topic.
- If the employer does not pay the minimum wage, the employee may exact payment by means of the salary claim procedure. The employee may request assistance from a Union, an attorney or the administration section of the Department of Labour, for this purpose.
- According to the National ordinance Minimum Wages, the following components are not considered as wage:
a) Earnings from overtime work;
b) Vacation bonuses;
c) Profit payments;
d) Payments on special occasions;
e) Payments pursuant to claims to receive one or more payments after the passing of time or under a condition;
f) Compensation to the extent they are considered to serve to cover necessary expenses, which the employee must incur in connection with his employment;
g) Special compensation for breadwinners and heads of family.
So the basic salary without all this type of special payments or compensations must be equal to or higher than the minimum wage.
- Minimum wage folder:
- Yes, the claim to vacation may be cancelled in three cases:
- If an employee during that year has not worked for a total of at least six months;
- If an employee, because of compliance with legal obligations has stayed away from work for six weeks;
- Vacation days may be cancelled, because of saving up vacation, if the maximum allowable number of vacation days has been exceeded.
- The employer, for reasons of company interest, may postpone or cancel an already established or commenced vacation. The employee, in such a case shall be entitled to reimbursement of any travel- and accommodation costs already incurred. Other damages, if any, which the employee suffered as a result of [postponed or cancelled vacation, shall therefore be for the account of the employee.
- No, parties cannot make an agreement that legal vacation days may be sold or paid out during the term of the labour agreement.
Only at the end of the employment is it permitted for the legal vacation days not taken to be settled for their monetary value. Parties may however agree mutually as regards the number of vacation days which exceeds the statutorily required number of vacation days. The number of legal vacation days per year is the number of working days per week times three. Furthermore, the rule is that an employee with a six-day workweek is entitled to at least 15 vacation days per year.
- Yes, the vacation regulation 1949 (P.S. 1949, no. 17) is applicable to all employees, who are working on the basis of a labour agreement. Household personnel too is employed on the basis of a labour agreement. The labour agreement may be entered into verbally as well as in writing.
- An employer may only interrupt the vacation of an employee for reasons of company interest. The employee may, in principle not refuse unless the employee has an important reason, for which the company interest must yield. If the vacation is interrupted, the employee may require of the employer that the latter reimburses the damages suffered with regard to the travel- and accommodation expenses.
- No, but the employer, when establishing the vacation, must take the interest of the employee into consideration to the extent possible.
- The vacation may be interrupted:
- Upon request of the employee;
- For reasons of company interest;
- Also if the employee at the start of the vacation is not fit to work or at that time or during the vacation is or falls ill, the vacation, or that part not yet enjoyed, shall be considered as cancelled.
- With partial disability the employee only builds up vacation rights on that part that he actually works.
- If an employer wants to dismiss an employee with a labour agreement for an indefinite period of time ( a labour agreement for a definite period of time, in principle ends legally), the employer shall generally need permission to do so from the Director of the Labour department.
To this end the employer must submit a request for permission at the Labour Department. The employee, in this case shall be given the opportunity to defend himself against the reasons advanced by the employer. If the employer makes a proposal to come to a mutual arrangement, it would be wise for the employee not to (immediately) agree with such a proposal, but to first obtain a written account from the employer. Then the employee may approach an advisor (e.g. the Labour Department, Union, attorney, etc.) for advice.
- Yes, especially if the dismissal request does not meet the legal conditions. The employer shall have to make it clear that he no longer has other suitable work for the employee in question and that he has done his utmost to keep the employee in the company. For example, an objection may also be filed if the employer has not adhered to the principle ‘last in, first out’.
- No. The employer is, in principle obliged to continue to pay the salary for as long as the labour agreement is in force. The employee does have the possibility, however of discontinuing payment, for example if the employee does not show up for work (no longer shows up for work) and has not reported sick. Even if the employer sends home an employee and he indicates that the employee is no longer welcome (non-active) he shall have to continue to pay the salary.
- In the first place, the employer must continue to pay the wages during the term of notice. The term of notice is in principle dependent on the duration of the employment. Furthermore, the employer must pay out the Cessantia at the end of the employment. This payment is dependent on the duration of the employment. In conclusion, the employer must pay out the vacation days built up but not yet taken.
- No, the dismissal law is not applicable to household personnel (domestic servants). The employer must however give notice. He must in this case respect a term of notice and a day of notice.
- The height of the cessantia payment is dependent on the duration of the employment and amounts to:
- For the first through the tenth full year of service, one week’s wages per year of service;
- For the eleventh through the twentieth full year of service, 1.25 times the week’s wages per year of service;
- For the subsequent full years of service twice the weekly wage per year of service.
If an employee is to be entitled to a cessantia payment, then the employment must have lasted at least one year. For the calculation of a full year of service, a period of more than six months, after the first year of service shall count as a full year of service.
- Yes, household personnel too is entitled to cessantia at the end of the employment, as long as the employment terminates other than through his/her fault. If the person in question is dismissed on the spot or hands in his resignation, no claim to cessantia payment can be made.
- In order to be considered for a cessantia payment, it does not matter if the employee is in permanent service, or works on the basis of a temporary contract.
Even the employee, whose labour agreement ends legally, because the time for which the agreement was entered into has passed, is entitled to the cessantia payment. The labour agreement for a definite period of time must however have lasted for more than one year.
- In the event of bankruptcy or suspension of payment of the employer, the employee can make a claim for cessantia payment at the Cessantia-Fund, which is managed by the SVB. To this end he must submit a request within one year after the termination of the employment, at the SZV.
- If the company is taken over with the contracts of the employees, then the former employer is not obliged to pay cessantia, except in the cases in which other agreements have been made between the new employer and the old employer.
- Only if the labour conditions at the new employer are worse than at the old employer, can the employee demand his cessantia from the old employer.
- The employee must claim his cessantia payment from the employer, within one year after the termination of the employment, otherwise his right to cessantia becomes prescribed.
- The cessantia payments which have not been collected within two years after the first day on which collection was possible, shall no longer be paid out by the S.Z.V.
- As soon as an employee performs work during the rest period which applies to him/her or works for a longer period than the maximum allowed working hours per day or per week ( calculated over a period of four weeks), there is a question of overtime work.
- Overtime work must in principle be compensated by an extra allowance on the salary. By mutual agreement, employer and employee may make written agreements to the effect that overtime work will not be paid in money but in paid leave (time back).
- An employee with an income above the maximum wage level of the Labour regulation does not enjoy the protection of the provisions of the Labour regulation 2000, since this regulation is not applicable to employees with an income of over the maximum wage level in this regulation. In such cases parties must make clear agreements in writing as regards what is applicable with regard to the working hours, working times and overtime work.
- No, a scheduled worker, who according to his work schedule, other than by way of overtime work, has performed work on night duty, on the basis of the Labour regulation 2000, in not entitled to an extra allowance. This is different if parties have agreed mutually on that right. (for example in a CLA).
- If an employee, upon the order of the employer must start his work at a time which deviates more than an hour from the applicable or usual working hours as indicated on the work list, or if the employer anticipates that the employee shall have to work longer than indicated on that list or if deviations must be made from the times indicated on that list, other than as overtime work, the employer shall be obliged to pass on that assignment at least 48 hours in advance to the employee.
- No, the obligation to continue to pay wages on holidays is regulated in the Labour Regulation 2000. The employer cannot exclude this obligation by means of a written agreement since the Labour Regulation 2000 does not provide for the possibility of deviating from this provision.
- A day of rest is a weekly rest period. For most employees Sunday is the day of rest. For employees who perform scheduled work on Sunday, the day of rest is the day, which in accordance with his work schedule, replaces the Sunday. The director is authorized to determine that for the professor of a religion, which prescribes a different weekly day of rest than the Sunday, the prescribed day, for the application of this national ordinance, shall take the place of the Sunday
A paid day off is a day established in advance by the employer via a schedule, on which no work need be performed by the employee and for which he has no right to continued payment of salary.
- The employee, for every day that he performs work for more than six hours, whether or not as overtime, shall be entitled to a break of at least half and hour, after at the most five hours of work. For the hotel and catering sector, the employer, on the day that the employee works for more than six hours, must give a break of at least half an hour, unless the service prevents such. For household personnel, the rule is that the employee must get a break after every five hours of work, for at least half an hour.
- The employer is generally obliged to do or neglect to do all that a good employer should do or neglect to do under equal circumstances. The employee must be informed of the work schedule in advance and within a reasonable time.
- Exceeding the term of one year does not result in a labour agreement for an indefinite period of time between the temporary employment agency and the temp worker. Neither is there a labour agreement between the employer and the temp worker at that moment. Exceeding the period of 1 year has as a result that the license of the temporary employment office may be withdrawn. Furthermore the temporary employment office is punishable in that case.
- Yes, the agreement between the temporary employment agency and the temp worker is a labour agreement, with as a result that all legal regulations are applicable to the labour agreement, therefore also the Vacation regulation.
- No, there is no labour agreement between the employer and the temp worker. No agreement is made between these parties. The temp worker has been placed at the disposal of the employer on the basis of a temporary employment agency agreement between the employer and the temporary employment agency
- No, a temp worker works on the basis of a labour agreement for a definite period of time. A labour agreement for a definite period of time terminates in principle, legally, unless there is a question of a continued temporary labour agreement which has become an employment for an indefinite period of time. In such a case the temporary employment agency does have to take a term of notice into account.
- If a temp worker who has worked for two months or more at an employer is hired for that same function by the hiring company, in principle no new trial period can be agreed upon. The hiring company after all was in a position to evaluate the employee when he still worked for the company via the temporary employment agency.
- Yes, this is possible, but there may be judicial consequences, in the sense that such a contract can be converted to a permanent employment. If there is a question of a chain of more than three consecutive temporary labour agreements, which each time are entered into immediately after each other or with interruptions of three months or less, then at the fourth labour agreement, this shall become a labour agreement for an indefinite period of time. If the temp worker, in this function, has therefore worked three times via a temporary employment agency for the employer, then there is automatically a permanent employment if the temp worker after that enters into the service of the employer on the basis of a contract for a definite period of time (fourth contract). So the period(s) during which he worked for this company via the temporary employment agency, count to determine the chain of consecutive contracts (labour agreements for a definite period of time). Also after continued labour agreements ( a chain of fewer than four) together have exceeded a period of 36 months at the same employer, the temp worker shall automatically become permanent at the employer if the employer enters into a contract for a definite period of time with the temp worker.