New rules regarding the (alternated) succession of fixed term employment contracts and replacement contracts

On 16 March 2023, the House of Representatives passed the draft Act “amending the Act of 3 July 1978 concerning employment contracts with a view to limiting the duration of the succession of fixed-term employment contracts and replacement contracts”.

The legislator's intention is to extend the application of the rules that existed until now in the case of a succession of fixed-term contracts, contracts for clearly defined work or replacement contracts, as well as the combined succession of these different contracts.

Until recently, it could be argued, based on a literal reading of the legal provisions (Articles 10 and 11ter of the Act of 3 July 1978), that the succession of fixed-term contracts and replacement contracts was not prohibited.

However, the Constitutional Court challenged this theory in its judgment of 17 June 2021, considering that these legal provisions violated Articles 10 and 11 of the Constitution, insofar as they did not apply in the case of an alternating succession of fixed-term employment contracts and replacement contracts. The case which gave rise to this judgment concerned a worker who had been employed for more than 15 years with the same employer under a succession of fixed-term and replacement contracts, and therefore escaped the prohibitions set out in Articles 10 and 11ter of the Act of 3 July 1978.

The legislator's intervention was therefore awaited on this issue.

The new Act, which introduces a new Article 11quater into the Act of 3 July 1978 concerning employment contracts, thus aims to extend job security to workers employed under a succession of so-called “precarious contracts”.

If the two-year period is exceeded, the rules of the open-ended employment contract should be applied.

However, there are two exceptions to this principle:

• If there is an interruption between the succession of contracts that is attributable to the employee. This exception already existed on the basis of Articles 10 and 11ter of the Act of 3 July 1978 for the succession of fixed-term contracts, contracts for clearly defined work, or replacement contracts. In concrete terms, any interruption attributable to the employee therefore “revives” a new two-year period.
• When the replacement contract follows a succession of fixed-term contracts or contracts for clearly defined work which are justified by the nature of the work or by other legitimate reasons. In this case, this replacement contract is not taken into account for a single time. In other words, this exception applies only to the first replacement contract following a succession of fixed-term contracts or contracts for clearly defined work which are justified by the nature of the work or other legitimate reasons. However, the use of this exception should not result in the total duration of the succession of fixed-term or clearly defined work contracts and replacement contracts exceeding three years.

The new legal provision will enter into force on 8 May 2023. It will thus apply to employment contracts concluded from this date, it being understood that in the event of a succession of contracts, those concluded before the date of entry into force will also be taken into account.

Key message

In the case of an alternating succession of different “temporary” employment contracts (e.g., two fixed-term contracts followed by a replacement contract), attention must now also be paid to not exceeding a maximum total duration of two years for all the contracts, except in the case of an interruption attributable to the employee or if the succession of fixed-term contracts or contracts for clearly defined work preceding the replacement contract was justified on legitimate grounds related to the nature of the work (in which case, the succession of contracts may not exceed a total duration of three years).

The rules which already exist now on the succession of fixed-term contracts (between them), contracts for clearly defined work (between them), or replacement contracts (between them), remain fully applicable.