Modification of working conditions in Belgium
| Autor | Pieter Pecinovsky |
| Páginas | 3-11 |
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The Belgian doctrine regarding the unilateral modification of working conditions by the employer is a fine example of praetorian law. The Cour de Cassation has set out most of the rules that have to be followed today. Although the legal base is constructed around article 1134,1 of the Civil Code, which basically forbids the unilateral modification of contracts. It is indeed rather difficult for an employer to make unilateral changes to the working conditions of workers. However, it certainly is not impossible if the right conditions are fulfilled. Seen the difficulty to do so, no statistical data on the number of unilateral modifications in Belgium exist.
In principle the unilateral modification by the employer of the worker’s function is not allowed. An agreement with workers’ representatives, the public authority or a third party has no influence whatsoever, since the modification merely relates to the obligations between the employer and the worker. In the judgment of 20 December 1993 and 23 June 1997 the Cour de Cassation said that article 1134,1 of the Civil Code (‘Burgerlijk Wetboek’) provides that the employer cannot unilaterally modify or revoke the labour conditions which are included in the employment contract, unless otherwise agreed upon. In the judgment of 13 October 1997 the Court added that article 20,1° of the Employment Contracts Act of 3 July 1978 entails the same protection. It is one of the basic characteristics of Belgian contract and obligations law that one party cannot unilaterally change the provisions of the contract.
However, this only counts for the elements which are included in the employment contract. The employer can use his authority or instruction right (ius dominandi) -based on article 17 of the Employment Contracts Act)- to alter elements which are not included in the contract. The Cour de Cassation thus has left the employer a ius variandi (the right to modify) for elements where upon no agreement exists. Yet, the employer still has to be careful since it is never allowed to abuse one’s own right. This
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is the case when the use of the right is manifestly unfair, i.e. when the advantages for the employer are not in proportion to the disadvantages for the worker. The employer thus has to use his ius variandi in good faith. However, it is rather unimaginable that the employment contract would not provide any information on the function, as this is an essential element of an employment contract, thus the use of the instruction right remains mostly hypothetical.
Next, it is possible that the employment contract includes a modification clause, which could circumvent the protection of article 1134,1 Civil Code and article 20,1° Employment Contracts Act. However, article 25 of the Employment Contracts Act prohibits the existence of such clauses in employment contract. These clauses are to be declared null and void. Yet, the Cour de Cassation decided in a judgment of 19 October 1991 that article 25 only...
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