Unilateral variation of contracts of employment in the public sector: the difficult interplay between administrative and labour law (R-4959)

The project aims to research one of the most crucial legal issues linked to the employment of contractual employees in the public sector. An important distinction between statutory and contractual employment in the public sector concerns the possibility to modify unilaterally the employment conditions. As far as the officials (who are statutory employed) are envisaged, the principle of changeability of public services allows, under certain conditions, to modify unilaterally their employment conditions. Unilateral modification of employment conditions for staff employed with employment contracts is far more limited under Belgian law. This scope of the so-called ius variandi is very limited. The possibility to modify unilaterally the employment conditions is influenced by the legal balance between industrial relations (collective labour relations) and individual employment relations. The ius variandi in the private sector has to be analyzed with regard to the possibility to modify the employment conditions by bargaining a new collective agreement. The rules in the collective agreements can, under certain conditions, affect the individual employment relationship. The balance between the rules resulting from collective bargaining and the individual employment conditions of officials is fundamentally different in the private and in the public sector. Public law requires that the results of collective bargaining are still needed to be converted by a unilateral administrative action by the public employer. However, the legal status of contractual employees in the public sector is regulated by aspects of public law as far the industrial relations are concerned while their status is governed by private law as far as their individual employment relation is concerned. This leads to a fundamental legal problem concerning the balance between industrial and individual employment relations for contractual employees in the public sector. This problem becomes more and more acute as the number of contractual employees in the public sector has been raising for many years. This research project aims to analyze this fundamental legal issue and to formulate potential solutions based upon comparative research. Both sides of the medal are researched as Denmark knows binding collective agreements for contractual employees in the public sector, while French public law deals with the status of contractual employees in the public sector. Therefore, in order to find a solution for the Belgian legal uncertainty, a comparative analysis of the Danish and the French case is necessary.

Keywords:Administrative Law

Disciplines:Law