New protection against dismissal accompanies Belgium’s transposition of the European Adequate Wage Directive
20 Jan 2025
On the final day of 2024, the Belgian act of 17 December 2024 – transposing Directive (EU) 2022/2041 on adequate minimum wages (hereafter ‘the Directive’) into Belgian law – entered into force. This act applies to the private sector and doesn’t affect the existing average guaranteed minimum monthly income laid down in collective bargaining agreement no. 43, nor any sectoral minimum wages. It does, however, contain additional measures to strengthen collective bargaining and bolster minimum wage transparency, as well as introduces a new protection against adverse treatment and dismissal for employees whose rights under these regulations are violated.
Strengthening collective bargaining
The Directive requires Member States to promote and strengthen collective bargaining on wage-setting, to encourage constructive, meaningful and informed negotiations on wages between social partners, and to protect the social partners from interference by each other. Although Belgian collective bargaining has been well regulated for decades, the latter requirement hadn’t been formally introduced yet. Therefore, the act of 17 December 2024 explicitly states that the representative workers' and employers' organisations must refrain from any interference by each other or by their representatives or members in the establishment, functioning or management of their respective organisations.
In addition, a provision is included to monitor collective bargaining coverage; meaning the share of employees at national level to whom collective bargaining agreements apply. Every two years, the coverage percentage will have to be determined and if it drops below 80%, a specific framework will have to be adopted to improve collective bargaining. Note, however, that – based on OECD reporting – the collective bargaining coverage in Belgium has been consistently above that threshold (96% for the period from 2000-2019), so it’s unlikely that this framework would be triggered soon.
Protection against adverse treatment and dismissal
The act of 17 December 2024 also holds a specific protection mechanism for employees whose rights under these provisions are violated. This mechanism is not only applicable in the private sector but also applies to contractual workers in the public sector and is split up in two parts.
First, there’s a protection against adverse treatment for employees, as well as employee representatives who aided them, who file a complaint against their employer for violating their minimum wage rights. When the employer takes adverse measures against the employee in question within 12 months after they filed the complaint, the employer will have to prove that these measures were taken for reasons unrelated to the complaint. If the employer violates this provision, he must pay a compensation equal to two to three months’ gross salary, or the actual damages incurred by the employee.
Second, employees exercising their rights under the act of 17 December 2024 are protected against dismissal, meaning their employment agreement can only be terminated for unrelated reasons. If the employer fails to abide by this protection mechanism, an additional lump sum compensation amounting to four to six months’ gross salary will be due.
Database sectoral minimum wages
To comply with the Directive’s requirements on minimum wage transparency, the act of 17 December 2024 and its preparatory works point to information regarding minimum wages and the protection thereof, including information on redress mechanisms, being available on the website of Federal Public Service Employment, Labour and Social Dialogue and state that a ‘conventional minimum wage database’ will be set up. Although not explicitly mentioned, it seems probable that this refers to the existing database with sectoral minimum wages (www.minimumlonen.be / www.salairesminimums.be), which would then likely be supplemented with information of the protection of minimum wages and employees’ redress possibilities.
Annulment procedure pending before the European Court of Justice
For the sake of completeness, please note that there’s currently a procedure pending before the European Court of Justice – initiated by Denmark and Sweden – to have the Directive annulled on grounds of breaching the EU’s competences on pay matters. Although a recent opinion delivered by an ECJ advocate general found the annulment claim to have merit, it’s currently still unclear what the Court’s decision will be and, if the Directive were to be annulled, what, if any, the impact would be on the act of 17 December 2024.
Key takeaway
The most important takeaway for employers is the fact that a new type of protection against adverse treatment and dismissal is introduced, which employers will have to keep in mind going forward. As with similar types of protection mechanisms, it will be crucial for employers to be able to provide for clear and unambiguous documentation that explicitly proves any adverse measures taken were for legitimate reasons unrelated to the employee’s protected status.
If you have any questions about this new legislation, don’t hesitate to reach out; we’d love to hear from you.
