Partial transposition of EU Directive on Adequate Minimum Wages into Belgian law
Written By
Counsel
Belgium
As Counsel in our International HR Services group in Brussels, I have in-depth experience in employment and civil law litigation, with a practice that spans an array of employment and social security law matters, focusing on dismissals, compensation and benefits and workplace health and safety hazards.
On 14 November 2024 the Belgian government introduced its draft Act on partial transposition of EU Directive 2022/2041 of 19 October 2022 on adequate minimum wages in the EU. It was swiftly steered through Parliament, promulgated on the 17th of December and published in the official Gazette just before the start of the new year.
As explained in our EU Employment Law Report 15 | Q2 2022, the EU Directive on minimum wages requires member states to take several measures in order to improve the adequacy of minimum wages and to increase workers’ access to minimum wage protection. As means to this end the Directive seeks to promote collective bargaining as well as the monitoring of minimum wage protection.
Promoting collective bargaining
On the issue of collective bargaining the Belgian government acknowledges that collective bargaining between workers’ and employers’ representatives on matters such as sectorial wage-setting is of old firmly embedded as part and parcel of the Belgian industrial landscape. The only novelty on promoting collective bargaining is the transposition into Belgian law of the new, specific right of protection of trade unions and employers’ organisations against “any acts of interference” by each other’s agents or members. Henceforth, both workers’ and employers’ organisations should refrain from interfering in each other’s organisation, in their establishment, functioning or administration (art 5 Act).
Other provisions that are a direct transposition of the Directive are the obligation to set up an action plan when the collective bargaining coverage rate is less than a threshold of 80 %, i.e. the ratio between workers covered by a collective bargaining agreement and the number of workers whose wage and working conditions can be covered by a collective bargaining agreement. If that falls below the threshold of 80 %, an action plan must be drafted to increase collective bargaining, to be assessed every 5 years. With an average coverage degree of 96 %, this legal obligation will in Belgium presumably remain purely theoretical.
Since minimum wages are not set by law in Belgium but on a sectorial level within the various joint committees or within the National Works Council (CBA nr. 43), none of the provisions of the Directive outlining the criteria for the adequacy of statutory minimum wages (art. 5, 2, a-d) Directive) are applicable.
Making information on minimum wage protection available via website
A central database is to be set up that will information on minimum wage protection, including information on redress mechanisms, publicly available. A Royal Decree will designate the competent authority charged with creating a data base on “conventional minimum wages”.
New Workers’ protection
Two new legal provisions have the strongest potential of impacting a company’s daily operations: (1) the protection of a worker who lodges a complaint on account of a violation of his rights on minimum wages against any form of adverse treatment and (2) a specific protection against dismissal of workers who make use of their rights on this matter.
Both the workers as well as the employee representative who assist or support the worker in lodging his complaint are protected against adverse treatment, such as e.g. a demotion, a change of workplace, a transition to a job with less working hours, … The concept of lodging a complaint is not limited to the actual filing of a case before court, but also covers the situation of filing an internal complaint within the company or contacting social inspection services.
If the employer takes an adverse measure vis-à-vis the worker or his representative within 12 months of the complaint, the worker will be entitled to a lump sum indemnity of 2 to 3 months’ gross wages (or the full damages suffered and proven by the worker), unless the employer is able to prove that the adverse measure was in no way related to his complaint.
In case of dismissal of a worker who lodged a complaint, or measures taken in view of an upcoming dismissal of said worker, without the employer being able to prove the dismissal was in no way related to this complaint, the worker is entitled to a lump sum indemnity of 4 to 6 months’ gross wages.
Observations
Certain members of parliament who voted against the Act voiced concerns on what they consider as the EU’s overreach on matters of wages (an issue that was also highlighted by certain member states at the time of drafting of the directive), fearing a slow but steady encroachment of the EU on matters that are, strictly speaking, within the member states’ remit and a matter of safeguarding a member state’s national competitive position. The fact that regional differences may require for a more differentiated approach on wage setting also raised questions on the utility of national wage setting that is not necessarily adapted to a local region’s economic needs, nor in the interest of employers, faced with a new category of workers protected against dismissal. The majority view highlighted the need to transpose the EU directive into Belgian law, as a general means to achieve more adequate and just minimum wages and combat social dumping.
Timeline
The Act has entered into force on the day of its publication (31 December 2024). The immediate practical impact of this Act for employers will be relatively limited, aside from the fact that it must be born in mind that a new category of workers will henceforth be protected against dismissal and/or adverse measures.
