Requesting a form of employment with more predictable and secure working conditions: what does CBA No. 161 provide for?

The right, for an employee, to request a form of employment with more predictable and secure working conditions is provided for in a European directive.

To enable the implementation of this right in Belgium, the National Labour Council concluded Collective Bargaining Agreement (CBA) No. 161 on 27 September 2022.

This agreement, which came into force on 1 October 2022, has been concluded for an indefinite period.

Below is a summary.

Companies and employees concerned 

CBA No. 161 applies to (mainly) private sector companies and the employees they employ.

However, to benefit from the right to request a form of employment with more predictable and secure working conditions, the employee must meet the following conditions:

• have at least 6 months’ seniority with the same employer;
  • the periods of employment with the same employer are added up;
  • in the case of successive fixed-term contracts with the same employer, the periods between these contracts are neutralised;
  • in case of temporary agency work, seniority with the temporary work agency and with the same user must be taken into account;
  • if a temporary agency worker is hired by a user after the period of employment as a temporary agency worker with that same user, the periods of employment as a temporary agency worker with that user must be taken into account;

• and have predetermined and actual working hours that amount to more than an average of 3 hours per week in a reference period of 4 consecutive weeks.

More predictable and secure working conditions 

As more predictable and secure working conditions can be considered:

• an employment contract for an indefinite period (rather than a fixed-term employment contract);
• a full-time employment contract (rather than a part-time employment contract);
• a part-time employment contract with more working hours (rather than a part-time employment contract with fewer working hours);
• an employment contract with a fixed work schedule (instead of an employment contract with a variable work schedule);
• a weekly or monthly employment contract for temporary agency work (rather than a daily employment contract for temporary agency work).

Eligibility requirements for a form of employment with more predictable and secure working conditions (e.g. type of work and availability, required qualification of the employee, etc.) may be the subject of:

• a CBA in the sector or company;
• an agreement concluded at company level in consultation with the trade union delegation or, failing that, with the employees;
• or of a mutual agreement between the employer and the employee.

Procedure

Request by the employee

The employee who wishes to obtain a form of employment with more predictable and secure working conditions submits a written request to the employer:

• at least 3 months before the desired start of this form of employment (unless a shorter period is provided for at sector or company level);
• by registered letter, by delivery of a writing (the duplicate of which is signed for receipt by the employer) or electronically (with an acknowledgement of receipt from the employer).

This request includes:

• the express reference to CBA No. 161;
• the indication of the type of employment for which the employee wishes to be considered;
• the desired start date for this type of employment.

Important note! The employee may not (in principle) submit a request more than once in a 12-month period.

Employer’s response

The employer must respond to the employee's request as follows:

• in writing;
• within one month (2 months if the employer employs fewer than 20 employees) from the date of the request; if not, the employee may repeat the request.

The employer more specifically states herein:

• in case of refusal: the concrete reasons for his decision;
• in case of postponement: the concrete reasons for the postponement (justifiable reasons related to the operation of the business);
• in case of a counter-proposal: a reasoned counter-proposal (other form of employment or other period for exercise).

In the case of a request from a temporary agency worker, the user should disclose to the temporary work agency the reasons for this agency’s response.

If the parties reach an agreement

If the employer accepts the employee's request or the employee accepts the employer's postponement or counterproposal, the parties agree on the concrete terms and conditions of the form of employment (work schedule, wage, etc.).

Protection of the employee

Protection against unfavourable treatment

The employer may not take any adverse action during a certain period of time against the employee who applies for a form of employment with more predictable and secure working conditions, except for reasons unrelated to the exercise of this right.

This period begins with the employee's written request; it ends:

• if the employee performs the form of employment with more predictable and secure working conditions: 2 months after the beginning of such exercise;
• if the employer refuses the request: 2 months after this refusal;
• if no form of employment with more predictable and secure working conditions was initiated: 2 months after the employee's requested start date.

In case of postponement, the protection applies during the postponement period.

If, during the period of protection, the employer takes an adverse action for reasons that are not unrelated to the exercise of the right provided for in CBA No. 161, he will owe the employee compensation equal to a minimum of 2 and a maximum of 3 months' wages.

Important note! The non-renewal of a fixed-term employment contract can be considered an adverse action.

Protection against dismissal

During a certain period of time, the employer may not dismiss an employee who applies for a form of employment with more predictable and secure working conditions, except for reasons unrelated to the exercise of this right.

This period begins with the employee's written request; it ends:

• if the employee performs the form of employment with more predictable and secure working conditions: 2 months after the beginning of such exercise;
• if the employer refuses the request: 2 months after this refusal;
• if no form of employment with more predictable and secure working conditions was initiated: 2 months after the employee's requested start date.

In case of postponement, the protection applies during the postponement period.

If, during the period of protection, the employer dismisses the employee for reasons that are not unrelated to the exercise of the right provided for in CBA No. 161, he will owe the employee compensation equal to a minimum of 4 and a maximum of 6 months' wages.

Important note! Making any preparation for a dismissal shall be considered as a dismissal.

No combination of compensation

The compensation provided for under the two protections described above cannot be combined, nor with any other compensation payable by the employer as a result of the termination of the employment contract (including compensation for abusive dismissal), with the exception of a severance payment, non-competition compensation, a goodwill indemnity or additional compensation paid in addition to social security benefits.

Source: Collective Bargaining Agreement No. 161 of 27 September 2022 on the right to request a form of employment with more predictable and secure working conditions, www.cnt-nar.be.