Limitation of successive fixed-term employment contracts and replacement contracts
On 16 March 2023, the Parliament approved a draft Act introducing rules on the succession of fixed-term employment contracts and replacement contracts.
Until now, the Act on employment contracts provided rules for successive fixed-term employment contracts or successive replacement contracts, but not for a combination of the two types of contracts.
In general, a succession of such contracts is only possible in specific cases (e.g. when the employer provides proof that these contracts are justified due to the nature of the work or for other lawful reasons or when the interruption is attributable to the employee or for a specific period (e.g. two years)). If not, the rules for employment contracts of indefinite term apply.
The lack of regulation of successive fixed-term/replacement employment contracts gave rise to discussions and eventually to a judgement of the Constitutional Court (judgement no. 93/2021 of 17 June 2021), which ruled that the legislator should provide for a legal framework in this regard. The new Act now also limits the possibility of successively concluding one or more fixed-term employment contracts and one or more replacement contracts to 2 years (except for interruptions attributable to the employee). If the total duration of 2 years is exceeded, the rules for employment contracts of indefinite term apply.
In the case where a replacement contract follows several fixed-term employment contracts or employment contracts for clearly defined work, the replacement contract is disregarded once when calculating the total term of 2 years, if 2 conditions are met:
- the successive employment contracts are justified by the nature of the work or by another lawful reason (e.g. an employee is employed with a replacement contract following employment with fixed-term contracts because a colleague is taking career breaks or time credit); and,
- the total duration of the succession of the fixed-term employment contract or the employment contract for clearly defined work and the replacement contract does not exceed 3 years.
The Act enters into force on the 10th day after its publication in the Belgian Official Gazette and applies to employment contracts concluded from the date of entry into force.
However, for the calculation of the 2-year period, employment contracts concluded before the date of entry into force that precede the employment contract concluded after the entry into force of this Act in a successive manner are also taken into account (e.g. an employee was successively employed before the entry into force of the Act with a fixed-term employment contract of 10 months and with a replacement contract of 6 months. These 16 months will be taken into account for the calculation of the 2-year period if, after the entry into force of the Act and following the replacement contract, the employee is again employed for a fixed term of 10 months).
To do: check what chains of fixed-term employment contracts and replacement contracts exist within your company to avoid the risk that the rules for employment contracts of indefinite term will apply at the occasion of a subsequent renewal.