4 November 2022

Pitching for secure and predictable terms offers additional protection against dismissal

The increasingly competitive landscape for not only recruiting but also retaining talent suggests HR managers be at their workers’ beck and call to keep the workforce happy and motivated.  Common sense dictates that this would also include engaging in a conversation and if necessary, entering into negotiations, after queries are raised to better existing conditions.  Whatever comes naturally and is common sense does not need to be imposed and be the object of compliance under additional rules, imparted deadlines, mandatory motivation and obviously another, additional strand of protection against dismissal.

This is now exactly what the National labour council agreed on September 27th 2022 when concluding collective bargaining agreement # 161 respecting the “Privilege to solicit work with more predictable and secure working conditions”.  This collective agreement introduces into Belgian law EU Directive 2019/1152 of 20 June 2019 on transparent and predictable working conditions that should have been implemented by August 1st 2022.

Workers who have 6 months’ length of service can, based on said collective bargaining agreement, request their employer once every 12 months what in their (subjective) mind is/are more secure and predictable terms and conditions, for example:

  • An employment contract for indefinite duration instead of a fixed term;
  • A full-time employment contract rather than a part-time;
  • A part-time employment contract with a larger number of hours;
  • An employment contract with a fixed instead of variable work schedule;
  • A weekly or monthly instead of a daily contract for temporary work…

The workers’ formal application must be in writing (with proof of delivery), specify what she/he exactly aspires to be more sure and predictable working conditions, when she/he would want the new conditions to enter into force.  The employer must respond to said request within one month (two months for an employer with less than 20 workers). Unless the employer accepts the request, she/he must motivate it and specify the concrete and justified reasons for refusal, counteroffer or postponement.

It goes without saying that the application for more predictable and secure working conditions can only be granted if the requested work is available, the applicant meets the required qualifications and competences for that particular job and she/he accepts the proposed hourly schedule and wage conditions.

Employees that make use of said privilege to pitch for more sure and predictable terms are protected against victimisation and/or against termination for reasons that are linked to their request over a period starting with the request and ending 2 months after it was refused or when it was accepted, 2 months after the new terms and conditions took effect.

If an employer decides to take a negative measure against the employee or terminates him and there are unwavering indices that lead to believe that this all came as a consequence of the latter’s request for sure and predictable conditions, an indemnity is due of between 2 to 3 months’ salary for the victim of a negative measure and between 4 to 6 months’ additional salary for the terminated employee.

A negative measure that is decided can according to the collective bargaining agreement be the decision not to renew an expiring definite duration employment contract, that could then give rise to between 2 to 3 months’ salary as an indemnity not to terminate but to decide not to prolong.

Conclusion :

It is regrettable that an HR practice that is self-evident and natural, i.e. the conversation and negotiation between the individual worker and his employer must now be regulated and be the subject of another strand of protection against dismissal.  Now more than ever does this new collective agreement # 161 push the employer and his HR managers to keep a paper trail of its employees, even those that are on definite duration contracts.  These employees obtain now for the first time an instrument to challenge their employer’s decision not to prolong the definite duration contract. Be prepared!

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