As announced and presented in our blog of 21 February 2022, the Belgian government reached an agreement in February 2022 on the ‘Labour Deal’, which is a package of measures seeking to get more people into work and to achieve a better work-life balance for employees. In the meantime, the Council of Ministers has decided on the final legislative text during a second reading of the draft bill and the draft has now be presented to Parliament.
The draft bill still has to be voted upon in Parliament and then published in the Belgian State Gazette before it can enter into force. However, we expect that there will not be too many further changes to the current draft bill during the parliamentary proceedings.
In light of this final version of the draft legislative text, we have updated our bullet-point overview of the most important measures considered under this bill.
1. The introduction of a 4-day work week
- Full-time employees will have the option of working their working week during 4 rather than 5 days. This does not mean a reduction in the overall weekly working hours, but rather performing the same working time during 4 longer work days instead of their current 5 days.
- Employees will be able to work a maximum of 9.5 hours per day, if this is stipulated in the work rules. Also 10 hours a day – which is necessary in a system of 40 hours a week with 12 working time reduction days – will be possible, but a company CBA must then be entered into.
- The procedure for introducing such a regime is cumbersome:
- First, the employer will have to decide whether or not it would like to facilitate a 4-day work week; if so, the employer must introduce the system in the company by amending the work rules.
- Once the system has been introduced, the initiative then lies with the employee who, if he/she wishes to make use of it, will have to submit a written request to the employer.
- A request will be made for a 6 month period, and that period may be renewed.
- The employer may refuse the request, but must justify its decision in writing to the employee within 1 month.
- If the employer agrees to the request, then a written agreement must be entered into that contains a number of mandatory provisions. If the Health & Safety Committee (or, in its absence, the trade union delegation) requests a copy of this agreement, then such a copy must be provided to this body.
- The request and the agreement (or copies of each) should be kept, during the period to which they relate, at the location where the work rules can be consulted within the company and afterwards they must be kept by the employer for 5 years.
- An employee filing a request will be protected against dismissal for reasons related to his/her request.
- An employee who has entered into a 4-day work week (e.g. from Monday until Thursday) may not perform voluntary overtime hours on the other days of the week (in our example, from Friday until Sunday).
2. The introduction of a varying weekly working regime
The employer can introduce a so-called varying weekly working regime in the company, i.e. to work more in one week and have more time-off in the following week. This cycle would be, in principle, limited to two weeks, but during the third quarter of the year (July – September), the cycle may be extended over a period of 4 consecutive weeks. This measure is mainly aimed at separated and divorced couples with co-parenting responsibilities.
As with the 4-day work week, the initiative lies with the employee (once this scheme has been introduced within the company) and a very similar cumbersome introduction procedure must be complied with. In addition, the employee filing a request will also in this case be protected against dismissal for reasons related to his/her request.
3. The earlier announcement of variable working time schedules for part-time workers
Variable working time schedules for part-time workers must, in principle, be notified to the workers at least 5 working days in advance, unless a sectoral CBA provides for a shorter period of at least 1 working day. The notification period will be increased from 5 to 7 days, but exceptions by sector-CBA remain possible. These exceptions by sector-CBA must provide for a minimum notification period that will be increased from 1 working day to 3 working days. However, sector-CBAs that are currently already in force and that provide for a period shorter than 3 working days would continue to apply until either a new sector-CBA is concluded or up until 31 December 2022 at the latest.
If applicable, the work rules will have to be modified in line with the changes above within 9 months after the rule above enters into force.
4. Transition paths: workers can already start working for another employer during their notice period
Workers will have the option of already starting to work, on a voluntary basis, for another employer (‘user’) during their notice period. Such work will be organised by the temporary employment agencies or by the regional employment agencies, VDAB/Forem/Actiris.
An agreement will have to be concluded between the initial employer, the employee, the new employer (‘user’) and the temporary employment agency or the regional employment agency regarding the modalities and the duration of this regulated employee lending.
During this 'transition path', the initial employer pays the employee the wage that applies with the new employer (‘user’) for the function he/she performs there, or, if this wage is lower than the employee’s initial wage with the initial employer, the employee’s current wage for the function with the initial employer itself. The initial employer will be able to obtain at least a partial reimbursement from the new employer (‘user’).
The new employer (‘user’) will be obliged to hire the employee with a contract of undefined duration at the end of the transition path. If not, then the new employer (‘user’) will have to pay compensation to the employee equal to the salary of half the duration of the transition path.
5. Redeployment measures for 1/3rd of the notice period
The Unified Employment Status Act of 2014 already set out a general framework to increase the redeployment of terminated employees with a notice period or an indemnity in lieu of notice of at least 30 weeks by converting 1/3rd of the dismissal package into redeployment measures. The Joint Committees were given the responsibility of working out the details of this regime, but never came to an agreement. Therefore, the regime remained a ‘dead letter’.
The Federal government has now worked out a solution. Employees with a notice period (or indemnity in lieu of notice) of at least 30 weeks will be given the right to devote the last 1/3rd of this notice period to redeployment activities, such as additional training, coaching, outplacement, etc. However, instead of converting 1/3rd of the dismissal package into redeployment measures, these measures will now be financed using the employers’ social security contributions on the salary or the indemnity in lieu of notice for this period, which will be deducted by 4 weeks for regular outplacement. If the employee would be dismissed with a notice period, then he or she has the right to be absent from work (with pay) during the notice period as of the beginning of this notice period to follow these redeployment measures. If the employee would be dismissed with immediate effect by payment of an indemnity in lieu of notice, then the employee should remain available to follow these redeployment measures.
6. Criteria to determine the (employee or self-employed person) status of platform workers
The question of whether platform workers, such as Deliveroo's (bicycle) couriers or Uber drivers, are self-employed or employees has been a ‘hot’ and highly-debated topic for several years now.
In line with what applies in other high-risk sectors, such as the construction and cleaning sectors, a specific list of 8 criteria for platform workers will be included in the Labour Relations Act. If at least 3 of the 8 criteria are met (or 2 out of the last 5 criteria in the list), then an employment relationship will be presumed. However, this presumption can be rebutted by any means, and specifically on the basis of the 4 general criteria in the law, which are: the will of the parties, the freedom of organisation of work and working time, and the possibility of exercising hierarchical control.
In addition, an insurance for physical damage must be taken out for self-employed platform workers, which must offer protection equivalent to that provided in the Act of 10 April 1971 on work accidents.
7. Night work is made easier in e-commerce
As was already the case between 2017 and 2019, it will again be possible to introduce night work between 8 pm and midnight in a business by means of entering into a collective bargaining agreement, in addition to the existing option of amending the work rules.
Employers will also be able to set up a one-off experiment for a maximum period of 18 months in which (1) employees can work between 8 pm and midnight on a voluntary basis (without any union intervention) and (2) in which the working time schedules are automatically included in the work rules without having to go through the process for amending the work rules. However, the implementation of the experiment would require compliance with a number of burdensome formalities, such as involving the consultative bodies or the workers and the communication of certain information to the inspection services and the competent Joint Committee.
Employees wanting to participate in this experiment must individually file a written request with their employer.
The fact of an employee filing such a request to enter into this regime may not give rise to any unfavourable treatment by the employer. Furthermore, the employer may not take any action to unilaterally terminate the employment contract of an employee who does not make use of the right to request participating in the experiment, except for reasons unrelated to the request.
8. Introduction of a right for employees to be offline
Each company with at least 20 employees will be required to respect a right for employees to be 'offline' after working hours.
Unless a collective bargaining agreement (CBA) is concluded by the National Labour Council or within the Joint Committee that regulates this right collectively and is declared generally binding, every employer with at least 20 employees will have to lay down rules on ‘deconnection’ at the company level in a company CBA or in the work rules by 1 January 2023 at the latest, and this will be on the basis of a minimum ‘framework’ set by law. Among other things, guidelines must be introduced for the use of digital tools in such a way that the employee's rest, holiday and private life are guaranteed.
9. Introduction of an individual right to training days and an obligation for employers to draw up an annual training plan
In companies with at least 20 employees, the employees will receive an individual training right of at least 4 days per year in 2023 and at least 5 days per year as from 2024. However, sectors may increase or decrease the number of training days with a minimum of 2 days per employee. For companies with between 10 and 20 employees, the obligation is limited to an average of at least 1 day per year and per FTE.
In addition, every company with at least 20 employees must draw up a training plan every year and submit it to the Works Council (or, in its absence, the trade union delegation) or to the employees for advice. A copy of this plan will have to be sent to an official, who must be appointed by Royal Decree.
As described above, the draft bill that includes these proposed measures will have to be voted upon in Parliament and published in the Belgian State Gazette before entering into force.
