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The employment contract is a fundamental element in the relationship between the employee and the employer.
The rules attached to it can vary according to the status of the worker: blue-collar worker, employee, salesman, domestic worker, student, ... or according to the division of work (full-time or part-time) or the duration of the contract (permanent or fixed-term contract).
Types of employment contracts
The Belgian law on employment contracts sets out the rules for four different categories:
- Blue-collar workers
- Sales representatives
- Domestic workers
In addition to these four main categories, the law provides specific rules for employment contracts for remote workers or students. There is also specific legislation regulating the situation of service voucher workers, seafarers and professional athletes.
It is therefore essential to determine exactly what type of employment contract is involved in order to apply the correct regulations.
To determine the applicable regulations, the following question needs to be answered:
- What type of work is being carried out, or in other words, what is the nature of the work (blue-collar worker, employee, sales representative, domestic worker)?
- Next, the contract framework (student, temp agency worker, service voucher worker, seafarer, remote worker, foreign employee, etc.) needs to be considered.
- Once the status of the worker has been determined, their employment conditions must be set according to the duration of the contract (permanent contract, fixed-term contract or specific-assignment contract).
- Finally, the number of hours must be taken into account (full-time or part-time employment).
Types of employment contract according to the nature of the work
The Belgian Act of 3 July 1978 maintains the distinction between blue-collar workers and white-collar employees. The aim of the Belgian Act of 26 December 2013 ‘on the unified employment status’ was meant to harmonise the rules that apply to the notice period and the ‘carensdag’ (the first (unpaid) day of sickness for a blue-collar worker). However, this Act does not abolish the two different statuses:
- Blue-collar workers mainly perform manual work.
- White-collar employees mainly perform intellectual work.
Consideration must also be given to the specific status of the employee (for example, a student who is employed in the context of an employment contract for students (in French), the way in which authority is exercised (for example, a temp agency worker (in French) who is recruited by an agency and placed with a client), or the location where the work is carried out (such as for a remote worker (in French).
Types of employment contract according to duration
- Open-ended contract: the employment contract is concluded for an indefinite period of time (permanent contract).
- Fixed-term contract: the employment contract stipulates a specific day or period of time or an event which must occur on a given date, after which the parties are released from their mutual obligations.
- Specific-assignment contract: this does not specify the duration (e.g. an employment contract concluded for 10 months), but specifies the work to be carried out (e.g. an employment contract as an actor in a specific film, sorting fruit during the harvest season on a farm, drawing up a yearbook, etc.).
- Replacement contract: an employment contract concluded for the replacement of an employee whose employment contract has been suspended for a reason other than lack of work due to economic reasons, bad weather, strike or lock-out.
Types of employment contract according to working time
- Employment contract for full-time work: the employment contract is concluded on a full-time basis, i.e. for the normal (weekly) duration that is applicable in the company (for example: 38 hours/week).
- Employment contract for part-time work: part-time work is work that is voluntarily and regularly performed for fewer hours than the normal working hours in the company.
Content of employment contracts
An employment contract is a contract between a worker and an employer by which the worker gives an undertaking to the employer that they will carry out work on the authority of the latter in return for remuneration.
Four elements therefore have to be present for an employment contract to exist:
- A contract
- The authority of the employer (a relationship of subordination)
There is an employment contract if these four elements are present; there is no employment contract if one or more of these elements are missing.
An employment contract is a bilateral agreement. This implies that two parties give an undertaking to one another. In the employment contract, the employee undertakes to carry out work under an authority and the employer undertakes to pay remuneration.
An employment contract stems from the consent of the two parties.
The essential elements of the employment contract (in French) cannot be unilaterally amended either by the employer or by the employee (in other words without the agreement of the other party).
The contract has to be carried out according to the terms agreed by the parties. The worker or the employer has to have the agreement of the other to make any amendments to it.
In principle, unilateral amendments (in other words those made by one party without the agreement of the other) are prohibited, unless an agreed upon clause in the contract allows the employer to amend unilaterally accessory elements. Such a clause can never relate to essential elements contained in the employment contract (such as the function or the remuneration).
To be valid (in French), an employment contract has to meet certain validity conditions and, in certain cases, certain formal conditions.
The object of an employment contract is to carry out work. The employer undertakes to supply the work and the employee undertakes to carry out the work entrusted to them correctly and conscientiously.
Work is deemed to exist if a person carries out work for which they are paid under the authority of another, even if the job is short term or if the compensation granted is limited.
Work does not necessarily have to be determined. However, it is preferable for the parties to specify the function which has to be performed in the employment contract.
The consideration for the work carried out in regard to the employment contract is the remuneration.
Without remuneration, an employment contract cannot be deemed to exist. This agreed remuneration has to be determined (for example, a specific amount) or determinable (for example, a piece rate, an hourly wage or remuneration through commission). However, the employer and the worker are free to fix the remuneration amount.
They still have to take into account the statutory minimum wage (in French) which is determined by collective agreements (CCTs) which are generally binding (scales).
In case remuneration has not been expressly stipulated in an employment contract, the minimum wage according to the binding scale applies.
If there is no binding wage scale in a given sector or company, the employee is entitled to the guaranteed monthly minimum income (in French), possibly adjusted as a function of their age.
As far as the payment of wages is concerned, specific rules are laid down in law on the protection of remuneration (in French).
For there to be an employment contract, the employee needs to carry out their work in a relationship of subordination with the employer. Without a relationship of authority, there cannot be an employment contract.
Working within a relationship of subordination is what distinguishes a paid employee from a self-employed person.
Authority includes the competence, for the employer to give orders to the employee (managerial power) and to supervise the latter’s performance (supervisory power and disciplinary power).
Authority does not necessarily have to be exercised actually and permanently. It is sufficient that the employer has the legal option to exercise its effective authority at any time without it being necessary for him to do so strictly and continuously. The relationship of subordination therefore exists if authority can be exercised effectively.
In practice, it is not always easy to distinguish between a employee and a self-employed person. Under the law on working relationships, a number of criteria have been defined to determine the nature of the working relationship (in French).
More information on the content of employment contracts is available on our website in French and Dutch.