New Legislation for Local Staff of Diplomatic and Consular Missions in Belgium: New Rules, More Uncertainty
Kelley Drye Client Advisory
April 5, 2018
As of 15 February 2018, a multitude of new rules apply to local staff of embassies and diplomatic missions in Belgium. This change does not impact the staff of international organizations, contrary to what trade unions are stating. For diplomatic missions, taking appropriate action to implement this legislative change is important. However, the change does not resolve the problematic interaction between the rules of the public and private sectors, and creates additional uncertainty. On 19 April 2018, the Kelley Drye Brussels office will organize a seminar on this recent legislative change concerning the employment of local staff and the consequences it entails for foreign diplomatic missions.

Scope of application

The application of these new rules was triggered by the Law of 15 January 2018, which entered into effect on 15 February 2018, and amended the Law of 5 December 1968 on Collective Bargaining Agreements and Business Sector Committees to include in its scope the staff members employed by diplomatic missions, missions to international organizations having their seat in Belgium, consulates, and foreign diplomatic officials or consular officials if these staff members do not enjoy a privileged status under the Vienna Convention on Diplomatic Relations, the Vienna Convention on Consular Relations or any other applicable international treaty. Contrary to what trade unions are stating – and are advocating for – staff members of international organizations are not affected by this change.

Consequences of the legislative change

In short, all collective bargaining agreements (CBAs) – which constitute secondary, but binding, legislation – that previously only applied in the private sector, today also apply to local staff of diplomatic missions. It concerns over 100 different CBAs regulating topics ranging from drug prevention to motivation of dismissals. In the wake of these changes, other legislation (which refers to the law of 5 December 1968 regarding its scope of application) will also become applicable, such as Belgian legislation which limits or blocks the possibility to give bonuses or salary increases to employees. 

Taking appropriate action following the new legislation is important for the following reasons:
 
  • The new Belgian legislation applies to local staff of diplomatic missions as of 15 February 2018.

  • There is no transition period, there are no transitional measures.

  • Over 100 different CBAs are now applicable to local staff.

  • The new legislation does not resolve the problematic interaction between the rules of the public and private sector. Conflicts between rules are expected. 

  • Belgian trade unions, united under the “intersyndicale” label are:
     
    • sending out information letters (questioned by other experts) to missions and employees

    • very rapidly approaching ministries and decision makers to enact important follow up legislation and decisions which is not always in the advantage of the missions

  • In this context, the trade unions are proposing to consider diplomatic and consular missions as private non-profit organizations (by assigning them to the business sector committee for non-profit organizations and having CBAs specific to non-profit organizations apply to diplomatic missions as well). The legislative change has made it possible for the competent Ministry to propose a Royal Decree making diplomatic and consular missions subject to an existing or a new sector committee, although this is not necessary. The trade unions have requested these changes to be formalized in the weeks to come.

  • Considering diplomatic and consular missions as private non-profit organizations is not logical and even problematic for different reasons (e.g. the diplomatic missions would need to apply CBAs tailored to the non-profit sector, no longer benefit from the flexibility of the public sector, be represented by local Belgian non-governmental organizations in the sector committee, trade unions could continue to propose new legislation in this committee where missions are not represented, etc.).

  • Requesting either the Ministry of Foreign Affairs or the competent Ministry for Work to act with caution should be considered. Diplomatic and consular missions should be entitled to a regime for their local staff which is in line with the public nature of the mission and which offers legal certainty for all concerned. Which business sector committee would apply (if any) is a decision that should be carefully examined and the missions should be given time to prepare for changes.

  • Because diplomatic and consular missions are not being consulted, the Belgian legislator may be unaware of any concerns missions have. Currently, only the guidance of the trade unions is followed.